Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 142

 

A243/04

OPINION OF LADY RAE

In the cause

CD (AP)

Pursuer;

against

LANARKSHIRE ACUTE HOSPITALS NHS TRUST

Defenders:

Pursuer:  Mr E Creally QC et Ms F Drysdale et Ms Henderson;

Drummond Miller LLP

Defenders:  Mr G Mitchell QC et Mr N McKenzie;

 NHS Scotland Central Legal Office

22 October 2015

Introduction
[1]        This is an action for damages by CD as Tutrix to her minor son C, born on 19 July 1999, in respect of injuries sustained by him in the course of his birth at the William Smellie Maternity Unit at Law Hospital in Lanarkshire.  The pursuer avers that during the birth process, C sustained a severe brachial plexus injury which resulted in him being left with a permanent disability.  She further avers that the loss, injury and damage suffered by C was caused or materially contributed to by midwifery staff employed by the defenders, more particularly, Sister Midwife Rosemary Murphy.  Liability is disputed.  Quantum is agreed at £725,000.

[2]        Article five of condescendence sets out the ways in which it is averred that Sister Murphy, an employee of the defenders, had a duty to exercise the skill and care of an ordinarily competent midwife acting with ordinary skill and care and details the ways in which she failed to exercise those duties. They are as follows:

“In the exercise of ordinary skill and care sister Murphy had a duty (1) to recognise that this was an obstetric emergency and (2) to diagnose shoulder dystocia when Student Midwife Alexander failed to deliver C……’s shoulders having used gentle traction.   No ordinarily competent midwife would have failed to do so.   In the exercise of ordinary skill and care Sister Murphy had a duty (3) to follow the hospital protocol and the HELPERR protocol.   No ordinarily competent midwife would have failed to do so.   In the exercise of ordinary skill and care sister Murphy had a duty (4) not to use excessive traction in the context of shoulder dystocia when attempting to deliver C……...   No ordinarily competent midwife would have done so.   In the exercise of ordinary skill and care when she appreciated that shoulder dystocia had occurred Sister Murphy had a duty (5) to immediately call for assistance from the obstetric staff.   No ordinarily competent Midwife would have failed to do so.   In the exercise of ordinary skill and care she then had a duty to place the pursuer (6) in the McRoberts position and apply suprapubic pressure in an attempt to release the impacted shoulder.   No ordinarily competent midwife would have failed to do so.   No ordinarily competent midwife would proceed to manual rotation without first attempting to release the fetal shoulder by McRoberts position and suprapubic pressure.   In the exercise of ordinary skill and care she had a duty (7) to note or to delegate the making of a note of timings and every manoeuvre, to provide a clear account of events and to write up herself a retrospective account of delivery.   No ordinarily competent Midwife would have failed to do so.” 

It is averred that having failed in those duties Sister Murphy caused or materially contributed to the loss, injury and damage.

[3]        A joint minute of agreement was presented at the start of the proof.  For the most part this agreed documentation, medical records, school records, photographs of C, handwriting of C and excerpts from guidelines and textbooks, not all of which were referred to in the proof.  Quantum and interest were agreed at paragraphs 35 and 36.  I then heard 13 days of evidence.  This included evidence from the parents of C, Mrs CD and Mr AD.  I also heard evidence from the midwives present at the birth, namely, Pauline Frances Sutcliffe, Lynn Alexander or Kerr and Sister Murphy.  I shall refer to the student as Midwife Kerr although witnesses used her maiden name at times and she is referred to as Alexander in documentation from 1999.  She was a student midwife as at 19 July 1999.  In evidence she professed to have no memory whatsoever of the delivery.  It was obvious however as the proof progressed that she had provided some information to one or more of the experts in the form of a statement or statements or precognitions and those experts appear to have had regard to that information, to some extent, in forming their view.  I do not know the detail of the information provided by Midwife Kerr.  Where it was possible to do so I have had no regard to the contents of the expert reports where they make reference to this witness’ account.

[4]        Thereafter I heard evidence from a number of expert witnesses: Mrs Sandra Tranter, a retired midwife, Professor Timothy Draycott, a consultant obstetrician, and Professor Thomas Carlstedt, a consultant surgeon for the pursuer; Dr Julia Sanders, a consultant midwife and Professor Gary Mires, a consultant obstetrician for the defenders.

[5]        In view of the dispute on fact in this case and the challenges to the credibility and reliability of the witnesses it will be necessary to provide some detail of the evidence of each of the witnesses to fact.  Before summarising the evidence I shall provide a chronological list of events relevant to this opinion, all as noted in the medical records^[1] and spoken to and amplified by witnesses.  I do so however with this caveat.  The records do not contain details of a number of the important events which occurred in the course of this delivery.  I shall provide what I consider to be agreed relevant facts or those which do not appear to be in dispute, including details of procedures and guidance which I understood was in place at the time of C’s birth, the effect of which will be to remove the necessity of rehearsing these matters from the evidence of more than one witness.

 

Undisputed facts
[6]        The pursuer was booked in to the William Smellie Maternity Unit at Law Hospital in Lanarkshire under the care of Mr Hannay, consultant obstetrician.  That unit was a teaching unit.  On 17 July 1999 the pursuer was admitted to hospital for induction of labour.  The foetal position is noted as longitudinal lie with cephalic presentation and “LOL”, namely, left occipito lateral.  Due to a shortage of beds the pursuer was sent home and re-admitted the following day.  She was transferred to the labour ward at 0455 hours on the morning of 19 July 1999 when the first stage of her labour commenced.  Initially the pursuer was under the care of Midwife Anne Marie Bruce until Midwife Sutcliffe came on duty at approximately 0730 hours and took over her care.  The pursuer was prescribed 7.5 mg of diamorphine at 0610 hours.  At 0820 the pursuer was upset and requested additional analgesia for pain.  After Midwife Sutcliffe consulted the sister in charge, Sister Murphy, additional pain relief was refused due to being “too early” after the previous dose of diamorphine.  The pursuer received an additional dose of 7.5 mg of diamorphine at 0925 hours.  The first stage of labour lasted 8 hours and 40 minutes.  The second stage of labour commenced at 1335 hours.  The notes reveal “fully dilated, caput and vertex + 2”. 

[7]        Whilst the following information was not included in the notes there was no dispute that, at an undisclosed time, the head of the baby was delivered with the nuchal cord wound tightly around the baby’s neck.  This required to be cut and clamped, as was the practice in 1999.  This procedure was undertaken by the student midwife under the direction of Midwife Sutcliffe or Sister Murphy.  It was usual for student midwives to assist with deliveries in order to gain experience.  They must assist 40 births before qualification. Student Midwife Kerr had assisted 28 births prior to C’s birth.  She had attempted to deliver C’s body by applying gentle traction with the aim of guiding the baby’s body out.  The first attempt failed and she was instructed to make a second attempt.  When this did not achieve delivery, Sister Murphy took over.

[8]        It was agreed between parties that, after the baby’s head was delivered, there was a two minute interval before delivery of his body.  The medical notes reveal that C was delivered at 1356 hours.  Thereafter the following is noted:

“Shoulder dystocia to a moderate degree - shoulders delivered on 4th pull i/c legs abducted after manual rotation.”

 

This note was not timed, is unsigned and is written in a different hand from the previous notes which were written by Midwife Sutcliffe.  There was no dispute that Sister Murphy wrote the above note retrospectively.  It appears to have been written at some point between 1356 and the next timed note, at 1415 hours, which records a reduction in the drug syntocinon.  The second stage of labour lasted 21 minutes.

[9]        After delivery at 1356 hours, C was wrapped in a towel and removed immediately from the room.  He was not breathing and required to be resuscitated with oxygen after his airway was cleared.  He was transferred to the special care baby unit.

[10]      Following birth, C was noted to have a limp right arm and, after paediatric assessment, it is recorded that he had a right Erb’s palsy.

[11]      C weighed 9 pounds 2 ounces (4,140 gms) at birth.

[12]      “Shoulder dystocia” is recorded in the labour and delivery summary^[2]; in the baby care plan^[3]; and in the paediatric notes^[4].

 

Nature and extent of C’s injury
[13]      While the nature and extent of C’s injury was not agreed in the joint minute, some evidence about those issues was led from the pursuer and Professor Carlstedt who was an expert in this area.  He had examined C.  The severity of such injuries is, as the evidence from experts disclosed, particularly from Professor Draycott and Professor Carlstedt, one of the relevant factors which influenced their opinions on causation in this case.  Professor Carlstedt's evidence on the nature of C’s injury was not challenged by the defenders.  Mr Mitchell QC, senior counsel for the defenders, stated in his closing submissions that it was not disputed that C suffered the nerve injury described by Professor Carlstedt.  Accordingly to assist an understanding of the expert evidence and the analysis of some of the research into shoulder dystocia I propose to set out some of the information provided by the professor on brachial plexus injuries.

[14]      In his report dated 6 November 2014^[5] Professor Carlstedt said the following:

“The brachial plexus is the complicated formation of five spinal nerves, C5, C6, C7, C8 and T1.  At the base of the neck the spinal nerves merge and form the complicated formation of the brachial plexus which extends from the neck out through the shoulder girdle to the arm where the major nerves to the arm and hand are given off.  The upper nerves to the brachial plexus C5 and C6 innervate the upper part of the arm and the shoulder whereas the lower nerves C8 and T1 innervate  the lower part of the arm and the hand.

 

An obstetrical brachial plexus injury occurs in about one to two cases out of one thousand births.  In most cases the injury is mild and there is spontaneous recovery to normality within weeks to a month.  In about 20 to 30% of cases however the injury is more severe and normality does not occur spontaneously.  A brachial plexus injury like any nerve injury can be considered according to severity in three degrees.  The least severe injury is called neurapraxia which means the nerve with its content of nerve fibres is in continuity but function has stopped because of swelling or bleeding within or around the nerve.  There is full spontaneous recovery to normality without surgery.  An intermediate degree of nerve injury is called axonotmesis which means that the nerve is in continuity but its content of nerve fibres or axons has been injured.  There is in most cases after axonotmesis spontaneous recovery without surgery but normality is seldom encountered as the new axons have to negotiate across the site of the injury and into the periphery and are unable to reconnect to the original or normal targets.  Signs of recovery after such an injury start about 6 months after the lesion.  The most severe type of nerve injury is called neurotmesis which means that the nerve is completely interrupted and for any function to recur surgery is necessary.  As with axonotmesis there is a slower return to function and normality is not to be expected.

 

In brachial plexus injuries, both obstetrical as well as adult cases, there is also an even worse type of nerve injury which is situated within the spinal canal.  This could be as a rupture of the spinal nerve roots, or a tear of the roots from the spinal cord attachment.  Such injuries are in effect a type of spinal cord injury, as for function to return, new nerve growth has to occur within the spinal cord.  The possibility to achieve functional return after such an injury is extremely limited, particularly in obstetrical cases. 

 

A complication to a nerve injury such a brachial plexus injury in a new born or developing child is that such an injury affects the growth and maturation of the affected limb and also its joints.  With the inability of the injured nerve fibres to precisely reconnect to the normal targets there will be a disturbed muscle balance around joints such as the shoulder joint causing contractures and also mal development.”

 

[15]      Professor Carlstedt was of the view that C had sustained a severe type of nerve injury including avulsion of spinal nerve roots to the brachial plexus from the spinal cord.  That injury involved the upper nerve to its brachial plexus, C5 and C6 and to some extent C7 which appeared to have been affected by a milder injury.  The professor categorised the injury to C5 and C6 as degenerative.  As I understood the evidence, this injury and in particular to C6 would be classified as neurotmesis, a root avulsion injury.  C required reconstructive surgery by means of nerve grafts.  At the same time a release of his contracted shoulder joint had to be performed. He required three operations and although he had recovered quite well and had a useful arm, it was sub-normal and weak and was not fully functional.

[16]      Professor Carlstedt also set out in clear language the mechanism of a traction injury as follows:

“A traction injury to the brachial plexus occurs due to the flexibility of the neck and the loose suspension of the shoulder girdle.  The brachial plexus is a (sic) risk during such an event as the shoulder girdle is displaced and all the neck flexed.  If those two structures are separated the angle between the neck and the shoulder will be widened and consequently there will be a stress on the brachial plexus which will be largest at the upper part i.e. C5 and C6.  Depending on the magnitude of such force there will be varying degrees of nerve injury.  If force is strong enough it will interrupt the nerve structure and most commonly the upper part of the brachial plexus is more affected than the lower part namely C8 and T1.”

 

Relevant medical procedures and protocols
[17]      In cases of shoulder dystocia, following the HELPERR mnemonic is now recommended as it facilitates recall of each manoeuvre required to attempt to resolve the condition.  That procedure sets out a series of manoeuvres, each of which ought to take no longer than 30 seconds.  If a manoeuvre fails to resolve the difficulty, medical staff ought to move on to the next stage.  The use of the mnemonic was introduced by ALSO (advanced life support in obstetrics).  There was no ALSO guidance available to those at the William Smellie Unit until the year 2000.  There was guidance prior to this which was similar to that set out in the HELPERR mnemonic although not as detailed.  The earlier guidelines used at Law Hospital were not available after the hospital closed and were not produced in evidence.  While there appears to have been no ALSO guidance available to this unit before 2000, at least according to the evidence of the midwives present at C’s birth, particularly Sister Murphy, it was apparent from the expert midwifery witness, Mrs Tranter that ALSO guidelines issued in 1996 changed the advice to midwifery staff as to how to deal with such emergencies.  As a result, midwives were well aware in 1999 of the value and necessity of repositioning the mother such as in the McRoberts position to resolve instances of shoulder dystocia.

[18]      The HELPERR mnemonic provides the following procedure:

H         call for help

            E          evaluate for episiotomy

            L          legs into the McRoberts manoeuvre

            P          suprapubic pressure

            E          enter to perform internal manoeuvres

            R          remove the posterior arm

            R          roll the patient onto all fours

[19]      A call for help would involve the use of an emergency buzzer alerting additional medical staff including an obstetrician, a paediatrician and an anaesthetist.

[20]      Episiotomy is a procedure carried out during the second stage of labour to quickly enlarge the opening for the baby to pass through.  It is a surgical incision of the perineum which is the tissue between the vaginal opening and the anus.

[21]      The McRoberts position involves the mother being requested to lie flat on the bed.  With the assistance of midwives, the mother’s knees are pushed up towards her shoulders as far as possible.  The mother cannot achieve this position without help.  Each leg requires to be held in position by an assistant and additional nursing staff members are necessary.  Ideally the adoption of the McRoberts position requires the attendance of four accoucheurs but the partner of the mother may be asked to assist in holding one of the legs.  This position helps the baby's shoulder slip under the mother's pubic bone by enlarging the pelvic outlet.  The adoption of this position is difficult and uncomfortable for the patient.  The adoption of this position could resolve the situation without further intervention in excess of 50% of cases.  Mrs Tranter opined that, if combined with suprapubic pressure, the success rate could be as high as 70%.  Professor Draycott quoted the Royal College of Gynaecologists [RCOG] Greentop Guideline 42:  Shoulder Dystocia 2005^[6], as follows:

“The McRoberts manoeuvre is the single most effective intervention, with reported success rates as high as 90%. It has a low rate of complication and should be employed first. Suprapubic pressure can be employed with McRoberts manoeuvre to improve success rates.”

 

[22]      Suprapubic pressure is performed by an accoucheur clasping hands and placing the heel of the hand to the abdomen of the mother while applying downward or lateral firm pressure to attempt to disimpact the anterior shoulder of the baby.  It is most effective when performed in combination with the McRoberts manoeuvre.

 

The birth process
[23]      The birth process was described by a number of witnesses but most clearly in the course of the evidence of Professor Draycott.  His description was accepted by the defenders and adopted by Mr Mitchell in his final submissions.^[7] 

[24]      At the onset of labour the baby descends into the mother’s pelvis.  The pelvic inlet at the top of the pelvic bone is oval in shape and wider side to side.  At this stage the baby is facing to the side of the mother as the baby’s head is wider from front to back and this position allows the baby’s head to correspond with the widest part of the mother’s upper pelvis.  As the baby further descends the birth canal, which is a slight J shape, it encounters the pelvic floor at the pelvic outlet.  At that point the widest part is front to back.  This encourages the baby’s head to rotate 90 degrees.  The baby’s head flexes, chin on chest, to make the baby the smallest diameter to be born and the head rotates most commonly so that its face is pointing in the direction of the mother’s spine.  Professor Draycott emphasised that the head rotates around the neck, not the whole baby.  As the head rotates and flexes the shoulders stay in the same diameter.  The professor demonstrated by putting his chin on his left shoulder.  He explained that was how the baby is immediately prior to birth.  The baby’s head rotates around the pubic symphysis of the mother.  It rotates upwards, looking down towards the bed.  As soon as the head is born, it unwinds, looking straight ahead.  That is the process of restitution.  At that point the midwife or obstetrician checks to see if there is any obstruction by gentle diagnostic traction in the axial direction in line with the spine.  If there is no obstruction, the anterior shoulder rotates to the oblique most often and the baby is born.  In a normal delivery the anterior shoulder is born first.  Mrs Tranter emphasised that although the word “pull” is commonly used by medical staff it was important to emphasise that what is done is more of a guiding motion rather than a pull.  There is no need to pull hard for the baby to descend if there is no obstruction.

 

Shoulder dystocia
[25]      As at the date of proof one of the issues in dispute was whether C’s delivery was complicated by shoulder dystocia.  As I understood the history of this case which commenced in 2004, the existence of shoulder dystocia had not been in dispute until the lodging of a Minute of Amendment^[8] in August 2014.  By interlocutor of 21 January 2015 the court allowed the closed record to be opened and amended in terms of the minute and answers as adjusted.  The previous closed record, dated 12 August 2012^[9] appeared to accept, in answer 4, that shoulder dystocia existed at this delivery.  It states, inter alia:

“The second stage of labour lasted only twenty minutes with good advance of the fetal head, which is an acceptable length of time and accordingly would give no reason for anticipation of the degree of shoulder dystocia which occurred at delivery.”

 

In the amended record the defenders aver at page 19 B:

“…C.. being a large baby, it is likely that his shoulders proved to be ‘snug’ as they passed through the pelvis.”

 

 

[26]      There appears to be no universally accepted definition of shoulder dystocia.  It has been described as failure of the shoulders to traverse the pelvis after delivery of the head.  [cf. excerpt from Myles Textbook for Midwives (13^th edition 1999)^[10]].  Professor Draycott stated that the usual definition used in current literature is:

“those deliveries requiring manoeuvres in addition to gentle downward traction on the fetal head for delivery of the shoulders.”^[11]

 

Professor Draycott was of the view however that this was a subjective diagnosis on the basis that the definition itself implies that a diagnosis of shoulder dystocia must already have been made before implementation of the manoeuvres.  He referred further to a paper by C.Y.Spong^[12] and others which suggested a more objective diagnosis as,

“ a prolonged head-to-body delivery time (e.g. more than 60 seconds) or the need for ancillary obstetric manoeuvres.”

 

The 2005 Guideline states further:

“Shoulder dystocia occurs when either the anterior or less commonly the posterior fetal shoulder impacts on the maternal symphysis or sacral promontory.”

 

[27]      Mrs Tranter provided the following definition:

“Shoulder dystocia is an obstetric emergency which requires prompt and appropriate action to facilitate delivery of the baby’s body.  It is diagnosed when the shoulders fail to rotate into the anterior-posterior diameter of the pelvic outlet following delivery of the head followed by a failure of the baby’s body to deliver.”^[13]

 

The defenders’ midwifery expert, Dr Sanders, quoted the definition from the ALSO training manual of 1996 as:

“Impaction of the anterior shoulder against the maternal symphysis after the fetal head has been delivered.”

 

This is a bony obstruction which ought not to be resolved by the application of traction to the foetal head as this will stretch the baby’s brachial plexus.

[28]      Witnesses identified the main concerns of such emergencies as the umbilical cord becoming compressed between the baby’s body and the maternal pelvis or, as in the present case, delivery with the umbilical cord wound tightly round the baby’s neck.  As at 1999 the practice was to cut and clamp the cord.  Both situations could lead to a lack of oxygen to the baby and ultimately brain damage or death. Witnesses described there being only 5 to 7 minutes between the cutting of the cord and birth of the body before damage could be done.  Mrs Tranter was of the view that the foetus had only 10 minutes of reserves of oxygen before hypoxia could occur although much would depend on the health and condition of the baby.  Such an event also has risks for the mother’s health.

[29]      As well as risks to life and potential brain damage, shoulder dystocia can lead to physical injury to the baby such as a broken shoulder or collar bone or brachial plexus injury of varying degrees or Erb’s palsy.  Erb’s palsy is a form of brachial plexus injury.  Brachial plexus injury could be temporary or result in permanent disability.

[30]      Some of the risk factors of shoulder dystocia are maternal obesity, maternal diabetes or a very large baby.  It is not easy to identify the size of a baby prior to its birth.  The standard method of assessing this is by abdominal palpation but that is not considered to be an accurate method.  48% of cases of shoulder dystocia occur in mothers with no risk factors.  Medical staff attending the birth of C did not consider that any risk factors relating to shoulder dystocia existed.

[31]      Some of the classic warning signs of shoulder dystocia were described by witnesses as follows: a long first and second stage of labour, particularly the second stage; slow descent of the baby’s head at the second stage; turtling where the foetal head retracts into the vulva, immediately after delivery; the foetal head fails to turn to the side as it should; or where the baby’s body does not follow the path of the head.

 

Evidence of the parents of C
[32]      The first witness to give evidence in this proof was the pursuer.  She was a registered nurse by profession.  C was her second child, her first son, A, having been born in 1995.  She had suffered a previous miscarriage in February 1996.  In the course of her evidence, she was referred to and assisted by reference to relevant parts of the medical records lodged by parties.  At the start of the second stage of labour the pursuer was feeling very tired, in pain and uncomfortable.  She made a number of criticisms as to what she perceived as a lack of cooperation by midwifery staff, for example, the failure to provide additional pain relief and the refusal to allow her to change position.  Prior to the commencement of the second stage she was asked if student Midwife Kerr, could undertake the delivery of the baby.  Accompanying the student was Sister Murphy.  There was also another student nurse present in the room.  The pursuer had prepared a plan^[14] showing the positioning of the people in the room.  Midwife Sutcliffe, positioned for the most part at her right hand side, was monitoring the foetal heart rate and writing notes.  The pursuer described her own position as sitting up on the bed at about a 45 degree angle with her knees bent and her feet flat on the bed.  The only change in position which took place during the second stage of labour was when Sister Murphy took over the delivery from the student midwife.   The pursuer was asked to move a little further forward in the direction of the bottom of the bed.  When the baby’s head emerged the pursuer thought that the student midwife looked “panicked”.  She asked what she should do as the cord was round the baby’s neck.  Sister Murphy moved over and instructed the student to attempt to manoeuvre the cord over the baby’s head.  There was a pause and someone said “Right, push with the next contraction”.   The student midwife appeared timid and the pursuer heard her say words like, “it’s not moving” or “it’s not happening”.  The pursuer was still being told to push.  She then became aware of Sister Murphy trying to deliver the baby.  She saw her stand back, apparently in thought.  Sister Murphy then took a step forward and pulled the baby out.  The pull was “pretty violent”.  Sister Murphy looked as if she was taking part in a “tug of war”. No special manoeuvres to re-position the pursuer after the baby’s head was delivered were untaken.  Sister Murphy did not put two fingers into her vagina.   She described the atmosphere in the delivery room as tense but she was unaware of any major problem.  There was little communication.

[33]      After the birth Midwife Sutcliffe told the pursuer that C had been removed to a special care unit because he was “a bit cold”.  The parents were told very little.  They were not told until later that C had been injured.  Subsequently they were told that he had a brachial plexus injury to his shoulder but were advised that he would recover.  The pursuer was not given any indication that C would suffer any long term health problems.  The pursuer was not told until later that C was suffering from “right sided Erb's palsy”.  The pursuer required to source information on the internet regarding this condition.

[34]      After informing herself of the condition suffered by C, the pursuer wrote a letter of complaint on 13 September 1999.  This letter raised a number of matters, including the management by the midwives of shoulder dystocia.  The pursuer wrote this letter after she had undertaken “a lot of reading and studying”.  She had not been given any formal information from the hospital although she met a student nurse the day after the birth who said that C’s shoulder had “got stuck”.  That had been new information.  The pursuer did not know the student’s name but I was left with the impression that it was the same unnamed student nurse who had been observing the birth.  According to the pursuer her complaint was not properly dealt with by the defenders.  The correspondence^[15] in relation to this complaint, including the written responses by Sister Murphy, dated 21 September 1999, by Midwife Sutcliffe, dated 22 September 1999 and the response from the hospital were referred to in the course of the evidence of the witnesses and they had also been sent to the various expert witnesses along with other background information.  The complaint by the pursuer was rejected by the hospital management.

[35]      The pursuer described C’s current condition.  He has little use of his right arm.  He underwent a number of operative procedures including reconstructive nerve surgery to attempt to correct the injury suffered but he has been left with a permanent disability.  In view of quantum having been agreed, the history of C’s treatment and the effect of his injury were not explored in great detail.

[36]      In cross examination the pursuer was challenged as to her recollection of the birth.  She had no recollection of precisely when the nuchal cord was cut.  She could not recollect the student midwife “pulling” on C’s head but she was aware of the student with her hands on the baby’s head “as if waiting on the shoulders” and asking the pursuer to push.  When Sister Murphy took over the delivery the pursuer thought that she had pulled on the head of C 3 or 4 times.  She was not sure if the student midwife pulled the head at all.  It was put to the pursuer that her legs were lifted and moved to her chest as in the McRoberts position and it was also suggested that Sister Murphy inserted two fingers into her vagina.  The pursuer disagreed with both suggestions.  She had a clear memory of what occurred.

[37]      The second witness to give evidence was the pursuer’s husband, AD.  Although he claimed to remember everything clearly it was obvious that his recollection was not as clear as the pursuer’s in certain details.  It was apparent however that the birth of their second child had been a memorable event, as had the birth of their previous son.  Both witnesses drew a comparison between the first and second birth, stating that the first went very smoothly while the second was “completely different”.  AD spoke of a change in atmosphere between the first midwife who was dealing with his wife and the second who took over, namely Midwife Sutcliffe.  She was not as accommodating as the previous midwife, for instance, when the pursuer requested to get up she was told by Midwife Sutcliffe that she required to remain in bed.  He suggested that Midwife Sutcliffe made his wife feel uncomfortable and he was not happy with the situation.  He described the pursuer’s position as seated on the bed with her back leaning “slightly back” and legs bent.  The pursuer was not asked to change her position in any way other than to move slightly down the bed.  AD recalled the student midwife and Sister Murphy entering the delivery room and the request to allow a student midwife to deliver the baby.  The witness described the second stage of the delivery, including witnessing the head of the baby appearing and the cord being round his neck.  The student could not deliver C.  Sister Murphy stepped in “to have a look”.  She tried to free the cord from C’s neck by trying to get it over his head.  She then pulled on his head a couple of times.  There was no conversation amongst the women.  They just glanced at each other.  Sister Murphy then gave one pull and C was delivered.  This witness was of the view that the cord was still round the neck when the baby was delivered.  The witness conceded that he did not see everything as he was concentrating on his wife as well as looking around.  He did remember the facial expressions of the midwives.  Those expressions appeared to be questioning as to what they should do next.  They looked “panicked”.  Describing the nature of the last pull by Sister Murphy he described it as “yank” and “It happened really quickly”.  No explanation was given by the midwives but they simply “whisked” the baby out of the room.  He claimed that he and his wife were left alone and no one explained what was happening.   Approximately 10 to 15 minutes later they were told by a midwife that there was an issue with C’s breathing.  They next saw C in the special care baby unit where they were told that there was an issue with his shoulder.  On C’s discharge the witness recalled someone advising that the shoulder issue would “come good”.  He and his wife did not know the extent of the injury and were left with the impression that it would heal itself.  In cross -examination his position did not change.  His recollection was that Sister Murphy pulled three times while the student nurse pulled once.  He was quite clear that Murphy had pulled more than twice.

 

Evidence of the midwives present at the delivery of C
Midwife Pauline Sutcliffe
[38]      Midwife Sutcliffe was a little unclear about her training period which she said, initially, was 1996 to 1999.  She changed that to 1993 to 1996.  She stated that she was a “new midwife to the labour ward”.  (Later in evidence Sister Murphy described her as a newly qualified midwife.).  The witness was aware of shoulder dystocia as at 1999 as it was part of her training then.  She defined shoulder dystocia as an impaction of the anterior shoulder of the foetus against the mother’s symphysis pubis, after the delivery of the baby’s head.  She confirmed that such an occurrence was an obstetric emergency, which was life threatening.  In her view midwives had only about five minutes after delivery of the head to deliver the rest of the baby.  She was fully aware of the risks to mother and baby. 

[39]      The witness spoke of the drill that required to be followed where shoulder dystocia is diagnosed or suspected.  She was now aware of the RCOG’s advice to follow the HELPERR mnemonic introduced by the ALSO training manual although there was no ALSO guidance until the year 2000.  There was however guidance prior to this in similar terms.  The witness was referred to the Lanarkshire Health Board guideline^[16] which was updated as at November 1999 and describes the HELPERR mnemonic process.  The witness stated that she would have been familiar with the protocol applicable as at July 1999 and she would have used the advice provided in the twelfth edition to the Myles Textbook for midwives.  She knew how to deal with shoulder dystocia although she had not experienced such a case prior to July 1999.  As at that date, the first action after diagnosis of shoulder dystocia would have been to summon help. The attendance of an obstetric registrar, a neonatal registrar and neonatal nurses would be expected in response to the call for help.  Time was of the essence.   In an emergency situation someone would be nominated to scribe only and update the medical notes.  The mother would require to stop pushing and the midwife must stop pulling on the baby’s head.  The next step would be to abduct the mother’s legs into the McRoberts position.  Thereafter, according to the witness, an evaluation for episiotomy should be made although the possibility of an episiotomy ought to be considered throughout the emergency procedure.  If the McRoberts position did not result in delivery of the baby, internal manoeuvres could be attempted.  The witness described the insertion of the hand into the vagina of the mother at the 5 o’clock position in an attempt to dislodge the anterior shoulder from behind the pelvic bone.  However as at July 1999 midwives were taught to insert two fingers at the 5 o’clock position and slide the fingers up to dislodge the shoulder.  That internal manoeuvre, according to the witness, was known as “Ruben’s one”.   Evidence led later in this case, including experts led by the defenders revealed that it was anatomically impossible to reach the foetal shoulders with two fingers if the foetal shoulders were behind the symphysis pubis of the mother.  The witness was of the view that the insertion of fingers would cause excruciating pain to the mother as there would be very little room to manoeuvre.  A less invasive procedure may be to ask the mother to turn on all fours.

[40]      The witness was referred to her statement dated 22 September 1999^[17].  In preparing that statement she had sight of the medical records.  As at the date of giving evidence she only had “some memory” of the birth.  Shoulder dystocia was never diagnosed at any time during C’s birth and it was not at the forefront of her mind.  No one suggested that the shoulder dystocia drill ought to be implemented and none of the recommended obstetric manoeuvres took place, namely, the McRoberts position, suprapubic pressure, evaluation for episiotomy or internal manoeuvres.  By reference to the note recorded in the medical records, namely, “shoulder dystocia to a moderate degree - shoulders delivered on 4^th pull i/c legs abducted after manual rotation”, the witness was of the view that abduction meant only the widening of the legs.  Such a movement is possible in any birth as all mothers are asked to widen their legs.  That note did not mean that there was a shoulder dystocia situation.

[41]      The witness confirmed that she was the person making the entries in the medical notes.  She accepted that there were discrepancies between those medical notes and her statement, for instance, she suggested in evidence, by reference to the notes, that it was a midwife who carried out the vaginal examination at 1335 hours while her statement of September 1999 suggested that it was student Midwife Kerr who carried out the examination.  Her view was that what was in the statement must have been what happened.  At one point in her evidence when the accuracy of her memory was being tested by Mr Creally QC, senior counsel for the pursuer, she said, “I would stick to my statement.”  The witness conceded that the medical notes were not adequate.  She was referred to the UK Central Council for Nursing and Midwifery and Health Visiting Standards for Records and Record Keeping 1993 and 1998^[18] in relation to guidance about record keeping.  The witness accepted that there was no full note of the events which occurred during the birth, such as the timing of the delivery of the head, the presence of a nuchal cord tightly round the baby’s neck, the cutting and clamping of the nuchal cord.  Normally a scribe would be appointed in the delivery room to note all relevant events including the existence of shoulder dystocia and the implementation of any obstetric manoeuvres to deal with that obstetric emergency such as the McRoberts position.  It would be important to record in the medical notes the timing of any obstetric manoeuvre as nurses only have 30 seconds for each stage and if not successful in releasing the shoulders of the baby they require to move onto the next stage of the emergency procedure.  Additional examples of facts not recorded were: the arrival time of Sister Murphy and Student Midwife Kerr and which member of the medical staff undertook the actions noted.

[42]      The intention was for the student midwife to carry out the delivery and provide instructions to the mother.  The witness was there to advise and direct the student midwife during the delivery.  While not sure, because of the passage of time, she described the pursuer’s position during the second stage of labour as sitting with her legs abducted.  She was “almost certain” that she saw the delivery happening.  She believed that there had been a problem with the nuchal cord being wrapped round the baby’s neck.  The practice now was to loop the cord over the baby’s head but in July 1999 the practice was to clamp and cut the cord.  This added a degree of urgency because of the tight limit of time between that process and delivery of the baby’s body and this had to be achieved with one or two pulls.

[43]      Midwife Sutcliffe described the student midwife pulling timidly on C’s head without “sufficient force”.  As this had no effect the witness told her to try once more.  Sister Murphy then came forward, after the student’s second attempt, and performed the next pull which was unsuccessful.  Sister Murphy then said that if the baby did not come with the next pull she wanted the witness to summon emergency help.  The baby was delivered with that final pull.  The witness described a total of four pulls.  In response to a question from Mr Creally, the witness seemed to concede that shoulder dystocia arose where the baby was not delivered with the first pull.  Mr Creally then said, “So this is shoulder dystocia?” and the reply was “I imagine so”.  Despite this, the witness did not think that at the stage of the first pull shoulder dystocia existed.  When she responded to the complaint in September 1999 she still did not accept that there had been shoulder dystocia and that was still her position.  If that had been recognised the midwives would have stopped pulling and put in place other procedures.  She appeared to accept that there was heightened anxiety in the delivery room and that it was very stressful.

[44]      In cross examination the witness confirmed that no specific manoeuvres were undertaken, stating that, had the McRoberts manoeuvre been adopted, she would have written it into her statement.  Such a manoeuvre would be painful for the mother and was difficult to achieve.  She was of the view that Sister Murphy had not inserted two fingers into the pursuer's vagina.  She was then asked whether she could dispute that and her reply was “I can’t dispute that”.  She was asked how quickly the baby was delivered after the head and her reply was that she could not remember but if it was excessive she would have pressed the bell.

 

Midwife Lynn Kerr
[45]      As at July 1999 Midwife Lynn Kerr was about to start her final year of training.  She required to deliver 40 babies before obtaining the requisite certification to qualify as a midwife.  She was able, by reference to a log which she required to keep as part of her training, to confirm that she had undertaken 28 deliveries prior to the delivery of C.  She is now qualified and she gave some evidence about the general procedures, however when it came to being asked questions about the birth of C her position was that she had no recollection whatsoever.  Mr Creally, in his final submissions, described her as “defensive and unhelpful”.  I would agree entirely with that description.  I was not convinced that she was telling the truth when she professed to have no memory of the birth.  However I am of the view that I can interpret nothing from that attitude.  The only relevance of her evidence in the context of this proof was that she had had some experience in delivering babies before the birth of C.

 

Sister Rosemary Murphy
[46]      Sister Murphy has been a midwife since September 1981.  She was promoted to sister midwife in 1998.  She described the William Smellie Unit as a fairly small, consultant led, unit.  She defined shoulder dystocia as an impaction of the anterior shoulder behind the symphysis pubis after the head was delivered.  It was an obstetric emergency.  As at July 1999 she was aware of shoulder dystocia and how to deal with it.  She had dealt with approximately four such cases: two when she was a very junior midwife in the 1980s and two when she was in Law Hospital.  On one of these latter occasions the baby was 14 pounds and died.  The witness was fully aware of the potential consequences of that condition both to the mother and baby.

[47]      Sister Murphy gave similar evidence to Midwife Sutcliffe as to the guideline available in 1999 for dealing with obstetric emergencies such as shoulder dystocia.  She subsequently took part in ALSO training and obtained her certificate in the year 2000^[19].  Use of the HELPERR mnemonic was part of that training. 

[48]      In July 1999 in situations where midwives were unable to deliver a baby’s body after delivery of the head and where a diagnosis of shoulder dystocia has been made, the first action would be a call for assistance.  The mother would then be put into the McRoberts position.  There would be an evaluation for episiotomy and “perhaps” suprapubic pressure.  The witness deponed that, at that time, there was nothing in the guidance about undertaking internal manoeuvres by manipulating or rotating the shoulders of the baby and she was not trained to undertake such a procedure.  Midwives were only taught the rotational manoeuvre at the onset of ALSO training.  The McRoberts position would normally solve the problem in about 75% of shoulder dystocia situations.  A midwife would use no more traction than was used to deliver a baby normally.  It should not be a pull.  She described how, once the head of the baby was delivered, she would guide the baby down to ensure that the anterior shoulder is released and when that shoulder is visible the midwife would then change direction, delivering the baby upward until the posterior shoulder was released.

[49]      Before describing the detail in relation to C’s birth the witness was referred to her statement^[20] which she had seen “not long” before the commencement of the proof and she had discussed the case with “her counsel”, as she put it, about three to four years before.  I imply no criticism in recording these matters.  Sister Murphy confirmed that her statement of September 1999 was written after she had access to the medical notes.  The witness described the stages of labour by reference to the medical notes.  She was asked by Mr Creally whether she had witnessed delivery of the head and her responses were “I said it in my statement” and “if it is written in my statement I did see the head delivered”.

[50]      The witness acknowledged that while agreeing that the proper practice was to note significant events and timings during labour, a number of important events were not recorded in the medical notes.  Her position appeared to be that, firstly, she was not scribing and in any event, some made detailed notes while others did not.  She was unable to explain why she had failed to put more detail into her retrospective note.

[51]      When first asked whether she remembered the birth of C her reply was “some aspects”.  At this stage and for a large part of her evidence in chief the witness continually used phrases such as “would have been” or “would have happened”.  She was repeatedly asked whether she actually remembered the event and had to be reminded that she should tell the court only what she remembered. In view of the importance of this witness and her subsequent change of position regarding memory of this birth I consider it is necessary to provide, more fully, the detail of her evidence.  I should record at this stage that her apparent partial memory of events contrasts with her position later in evidence where she claimed to remember some of the detail of the birth quite clearly.  While I fully understand a witness being unable to remember details of an incident of many years before, I have difficulty understanding how a witness’ evidence can improve as dramatically as in the case of this witness over the period of two days.

[52]      The witness was unable to recall the positions of persons in the room but she recalled the pursuer as “sitting up until we had problems”.  She was asked if she witnessed the cutting of the cord after delivery of the baby’s head and her reply was that she did, “if I was in the room”.  She then said “I must have remembered it from the delivery when I wrote it in my statement”.  Her final position on this aspect was that she was in fact in the room at that time.  She was referred to her note in the medical records where she had diagnosed shoulder dystocia and she confirmed that the note must have been written between 1356 and 1415 hours.  She was again asked what Lynn Kerr did and although she described events, her evidence contained phrases such as, “she would have tried….”; “with the next contraction the student midwife would have attempted to deliver the baby”; “I would be involved now that the cord was cut”; Nurse Kerr “would have been standing at the side with one hand under the chin and one at the back of the head”.  She confirmed that Nurse Kerr attempted twice to deliver the baby after delivery of the head but there was no descent.  As senior midwife she had to take over.  She was asked if the failure by Kerr to deliver mandated the recognition of shoulder dystocia but her view was that it did not because it was a student who had attempted to deliver the baby and a trained nurse should first ascertain the position before making such a diagnosis.  The witness acknowledged that as the nuchal cord had been cut, time was of the essence and an obstetric emergency now existed.  Despite this, she had to satisfy herself before calling out medical assistance as this was small unit and “the doctor could have been anywhere”.  She further justified her position by saying that there were only three to four midwives in the unit and they were all “probably busy” although she had no recollection of what was happening on that particular day or where any of the medical staff might be.  She was then asked whether the emergency buzzer ought to have been pressed and she said “yes we should have”.  It was then put to her that no ordinary competent midwife would have failed to have recognised the emergency and summon assistance and she agreed with that suggestion.  There was then a break for lunch and the suggestion made before lunch was made again and again she accepted it.  She effectively accepted that she had been negligent.  On being reminded that she had recorded that there was shoulder dystocia to a moderate degree in the medical notes, the witness acknowledged this position stating that it had not been resolved by use of the McRoberts manoeuvre.  The witness acknowledged that there was no proper note as to the timing of that diagnosis but said:

“I would have diagnosed or thought it was shoulder dystocia when student Midwife Alexander was having problems delivering the shoulders”.

 

[53]      Sister Murphy deponed that when she took over the delivery she immediately gave instructions to Midwife Sutcliffe and the student midwife to put the pursuer into the McRoberts position.  Both assisted the pursuer.  The witness was adamant that McRoberts was adopted stating, “the baby could not have been delivered otherwise”, as she did not have the strength required to deliver the baby in such a situation.  She could not have delivered C with his mother sitting upright.  After McRoberts was adopted the witness made one gentle attempt at delivery but that was unsuccessful.  Her next step would have been to use suprapubic pressure but because of the size of the pursuer, she would be unable to feel where the anterior shoulder was.  To use suprapubic pressure without ascertaining the position of the foetal shoulder might make the situation worse and could cause damage.  Accordingly she put two fingers into the vagina posteriorly at the 5 o’clock position to ascertain which side the baby’s back was lying on.  She accepted that this would be painful for the mother.  She traced her fingers upwards to locate the anterior shoulder and “as I touched the shoulder it rotated forward and slipped under the pubic arch.”  This description implies that the anterior shoulder had been above the level of the pubic arch when the witness “touched” the shoulder although evidence led later in the proof from the expert witnesses would contradict this statement since it was anatomically impossible to reach the anterior shoulder with two fingers if the shoulder was at the level of the pubic arch.  When challenged, she said “I distinctly remember this happening”.  She claimed that she had written notes after the birth when she got home but that these had been destroyed when she prepared her statement in September 1999.  She would probably have been advised by senior management to write the notes because it was evident that there was a problem.  I asked her whether her note in the medical records about having undertaken “manual rotation” was what she described in evidence and she conceded that it did not reflect what she did because, despite what she had written, she did not in fact manually rotate the shoulder.  It was put to her by Mr Creally that it was not anatomically possible to do what she claimed she had done but she was adamant.  It was suggested that the whole hand would need to be inserted to reach the anterior shoulder and she accepted that that is how it is undertaken now.  Somewhat surprisingly she volunteered that she had not been trained to insert fingers into the vagina as she had described, but had witnessed it being done by medical staff.  What she did was not part of the protocol in existence at the time but “as a midwife in an emergency situation the most important thing was to deliver the baby”.  As she touched the shoulder it rotated itself and the baby came out very easily.  She was referred to her note which recorded that the baby was delivered after the fourth pull.  What she did was not a pull but a gentle guide.  At no time did she use excessive traction.  The witness finished her examination in chief by saying “I have a clear recollection of the delivery” and “I can remember distinctly the delivery.”  My impression at the end of examination in chief was that the witness acknowledged that an emergency situation existed at this birth; that she had failed to summon help when she ought to have done; that this was indeed a case of shoulder dystocia; that for that reason manoeuvres to deal with shoulder dystocia had been implemented; and that these manoeuvres had alleviated the problem.  Her evidence to the effect that she could not have delivered C with the mother in an upright position and that to do so would have required more strength than she possessed merely confirmed my impression that this witness did indeed believe that a shoulder dystocia existed at the time.  

[54]      Cross-examination of the witness commenced on the second day of her evidence.  She agreed with Mr Mitchell’s suggestion that, if there had been a difficulty, the student would not have been allowed to deliver.  When she took over there was nothing to suggest that there would be any difficulty in delivering the shoulders of the baby and none of the classic warning signs of shoulder dystocia existed.  The witness was aware of a degree of urgency as the nuchal cord had been cut.  She re-iterated her actions during the second stage of labour.  When questioned about her failure to summon assistance her position was that, as it was a student nurse who had attempted to deliver, she had to ascertain the position and try to resolve the situation.  I noted that her first action, according to her, was to put the pursuer into the McRoberts position, rather that ascertain whether it was simply a matter of the student midwife being timid.  She deponed that after insertion of her fingers into the vagina of the pursuer, delivery was easy.  She agreed with Mr Mitchell’s suggestion that the fact that the delivery was so easy meant that the anterior shoulder could not have been impacted and must have already been free from the symphysis pubis.  It was suggested by Mr Mitchell that, if there was no bony impaction, then it would be a “snug fit”.  The witness agreed with that suggestion also, adding that where the baby was large, it would be a “tight fit” as it passed the symphysis pubis.  When the witness was reminded that she had in effect accepted in chief that had acted negligently she replied, “On thinking about it, I know what I said yesterday.  I don’t accept that I was negligent”.  Her view was if there existed a bony impaction, violent pulling would achieve nothing and no amount of traction would deliver the baby.  Near the end of cross-examination when asked if this was a case of shoulder dystocia the witness stated, “Looking at it today it was a snug fit.”

[55]      In re-examination the witness’ position appeared to change again.  Although she had recorded shoulder dystocia at the time and used the phrase “manual rotation” she had been wrong to use those terms.  She is now better informed.  She realised about three years ago when the case was looked at again that her documentation had been wrong.  She stated that when she had seen the medical notes and her statement of September 1999 she realised that her documentation was inaccurate at the time.  This was in my view a curious turn of events since at the start of her evidence she preferred to rely on her statement as a prompt to her memory while by this stage her statement was wrong.  She gave no hint of this position until re-examination.  She now remembered the delivery distinctly.  When pressed further by Mr Creally, despite her position in cross-examination, the witness now agreed shoulder dystocia existed but only “to a mild degree”.  She continued to deny using manual rotation.  She postulated a theory to the effect that before she put the pursuer into the McRoberts position the baby’s shoulder was indeed behind the symphysis pubis.  Adopting the McRoberts position must have caused the shoulder to dislodge.  When she attempted to deliver, it had not fully dislodged.  She inserted two fingers but only touched the shoulder which must already have been dislodged by that time.  She strenuously denied using any excessive traction.

[56]      As may be apparent from this summary of this witness’ evidence there were a number of contradictions, inconsistencies and apparent changes in position.

 

Evidence of expert witnesses
[57]      All of the experts called as witnesses in this case were provided with various documents.  For all or some, this included statements, question and answer statements and precognitions of witnesses.  The documents provided included information from persons not called as witnesses before me.  I was not provided with the factual information which each expert had when drafting his or her report.  I imply no criticism but it was important for me to ensure that any view I came to in respect of the expert evidence had to reflect what version of the facts I established as proved.   Because of the view I have reached on the facts in this case I have found it unnecessary to summarise all of the expert evidence or all of the evidence about the many research papers considered in this case in relation to shoulder dystocia and causation of brachial plexus injury.  I shall only summarise the evidence I consider relevant to my decision.

 

Mrs Susan Tranter
[58]      Mrs Susan Tranter^[21] is a retired midwife who qualified as a general nurse in 1964 and as a midwife in 1966.  She stated that she had a wide range of experience and worked in all areas of midwifery including in the community.  She retired as joint head of Women’s Services at Brighton in Sussex University Hospitals NHS Trust, based at Princess Royal Hospital, Haywards Heath, West Sussex in November 2002.  Mrs Tranter undertakes consultancy work, all as detailed in her CV and she has written a number of reports for courts since 1993, acting both for claimants and defendants in England, split equally between the two.  She undertakes approximately 20 to 30 reports per year although in England, until recently, most of the cases with which she was involved settled.  She has given evidence in approximately 10 to 20 cases a year.  In Scotland she has only been instructed on behalf of pursuers.  The witness had some personal experience of shoulder dystocia situations, albeit limited to two instances. She prepared two reports in the present case, the first dated March 2014^[22]; and the second report dated 22 November 2014^[23] which was provided in response to a request by the pursuer’s solicitors after the defenders had lodged a minute of amendment in August 2014. 

[59]      Mrs Tranter was the only expert to sit through all of the factual evidence from the pursuer, her husband and witnesses Sutcliffe, Kerr and Murphy.  Her opinion in relation to this case had not altered after hearing the evidence.  Her view was that C’s birth was complicated by shoulder dystocia and the standard of care provided to the pursuer in the course of this birth fell below the standard of care required by a competent midwife at the time.

[60]      Mrs Tranter recognised that what occurred in the delivery room was an unexpected emergency where, after the delivery of C’s head and after the cutting of the nuchal cord, the baby’s shoulders failed to deliver with gentle downward traction by the student midwife.  That would be a frightening emergency situation for parents and staff alike but particularly for staff who would be aware of the time constraints to avoid the risks both to the baby and mother.  That would lead to a sense of urgency.  In the witness’ view, shoulder dystocia ought to have been diagnosed following the student midwife’s failed first attempt to deliver the body of C.  As soon as a midwife feels resistance she ought to stop pulling and diagnose shoulder dystocia.  The emergency procedure ought to have been implemented after that first attempt. 

[61]      Mrs Tranter had understood that, as at July 1999, the guidelines set out by ALSO were already being used by midwifery staff, however on hearing the evidence from the witnesses which tended to show that those specific guidelines and the use of the HELPERR mnemonic was not being used at the William Smellie Maternity Unit, her position was that from the description given by the midwives, the guidance was very similar to the procedures followed under the HELPERR mnemonic.  In any event the first action should always be to call for help and that will necessitate the attendance of medical assistance including a paediatrician as well as an obstetrician.  Once shoulder dystocia is diagnosed the attending staff do not know how long it will take to achieve delivery of the baby’s body and what condition the baby will be in at birth.   It was important to have medical assistance within the room as soon as possible.  An attending obstetrician would ensure that the mother was correctly re-positioned to assist the birth and that suprapubic pressure be applied.  On a review of the medical records Mrs Tranter noted that C was born in poor condition with a low Apgar score and required resuscitation.  Mrs Tranter was also of the view that anaesthetists should be present because of the risks for the mother and the need, possibly, for fluid replacement but the most important attendants would be an obstetrician and paediatrician in the first instance.  Mrs Tranter described in some detail the adoption of the McRoberts position which in her view would be extremely hard and uncomfortable for the mother.  Mrs Tranter was of the view that the failure to summon help in the circumstances of C’s birth and also the failure, if established, to use the McRoberts position fell below the standard of care required for an ordinary midwife.  She had similar comments in relation to the failure to apply suprapubic pressure.

[62]      When questioned about Sister Murphy’s assertion that she had inserted her fingers into the pursuer’s vagina Mrs Tranter thought that this was an unusual manoeuvre, if adopted.  In any event it would be painful for the mother and she believed the mother would be likely to be aware of it.

[63]      Mrs Tranter was specifically asked about the issue of excessive traction and whether the use of excessive traction could achieve delivery of a baby while the shoulder was impacted.  Her view was that if enough force was used the baby could be delivered but it would be at a cost to the baby.

[64]      Mrs Tranter was also very critical of the standard of note keeping in this particular case and highlighted a number of events which ought to have been recorded.  She conceded that, in an emergency situation, it might be difficult to make contemporaneous notes but retrospective notes should have been made immediately after the birth.  In her view the standard of note keeping was “very poor”.

[65]      Mrs Tranter was asked to comment on the report of the defenders’ midwifery expert, Dr Sanders^[24].  Dr Sanders had opined that the spontaneous rupture of the foetal membranes with copious amounts of clear liquid draining at 0430 hours indicated that the foetal head was poorly fitted into the maternal pelvis, possibly suggesting the foetus was in an occipital posterior position and this may have contributed to the relative delay in labour.  This was not accepted as being a contributory factor by Mrs Tranter, nor as I understood the evidence of Professor Draycott, by him.  In Mrs Tranter’s view there was no particular delay in the labour and there was no concern about the position of the foetus prior to the second stage of labour.

[66]      Mrs Tranter considered it relevant to note that Midwife Kerr, although a student at the time, had already delivered 28 babies prior to this present delivery and accordingly would have been aware of the normal traction which was required to deliver a baby. As soon as she was unable to deliver the baby after the head had been delivered, the emergency procedure ought to have been implemented immediately. She emphasised that gentle traction did not involve pulling.  My impression from this evidence was that the student midwife, who had already some experience in delivering babies, did no more than she ought to have done in applying traction and as soon as resistance was felt by her, or at the very least by Sister Murphy, an emergency situation ought to have been recognised.

[67]      In cross-examination Mr Mitchell suggested to the witness that what occurred in this birth was a “snug fit”.  Mrs Tranter had not heard that term until the evidence in the present case and it was not a term which was used in practice.  The witness was referred to her supplementary report which sought to comment on the late change of position by the defenders.  She quoted the change from “shoulder dystocia” to “difficulty in delivering the shoulders”.  In Mrs Tranter’s opinion, difficulty in delivering the shoulder was the same as shoulder dystocia.  In her experience the definition of shoulder dystocia as, manoeuvres other than gentle downward traction being required to complete delivery of the anterior shoulder, was the standard definition both in the United States and also in the United Kingdom National Guidance.  In her view, once the student midwife had applied normal downward traction and the shoulders failed to deliver it was at this point, when resistance was felt, that shoulder dystocia ought to have been recognised.  Mrs Tranter pointed out that despite this a second attempt was made without any diagnosis and even after Sister Murphy took over and attempted delivery there was still no diagnosis. 

 

Professor Timothy John Draycott
[68]      Professor Draycott^[25] is a consultant obstetrician and gynaecologist.  Although residing and working in Bristol he was, as at the date of the proof, in Australia and required to give evidence through a television link.  He had provided two reports, the first dated 6 December 2014^[26]; the second dated 14 January 2015^[27]  That supplementary report was prepared in response to the defenders’ minute of amendment.  The professor qualified as a doctor in 1989 and specialised thereafter in obstetrics and gynaecology.  He has developed an established research interest in the management of obstetric emergencies, particularly shoulder dystocia, and has published numerous peer review papers about the management of that condition.  Over the past 10 years and more Professor Draycott has researched and sought to understand the problems which midwives and obstetricians face in obstetric emergencies.  He has been looking into the most effective ways to address those problems in a practical way to reduce foetal injury, especially brachial plexus injury.  The witness had written the RCOG’s National Guideline for the management of shoulder dystocia, published on 5 December 2005.  He has rewritten the World Health Organisation Guideline for shoulder dystocia.  He led the team which developed the Practical Obstetric Multi-Professional Training (PROMPT) course, which is now being rolled out globally.  This has been rolled out in over 80% of United Kingdom units as well as internationally, including Australia and New Zealand, the United States of America, Zimbabwe and China.  It is unnecessary to summarise all of the witness’ qualifications, awards or achievements.  Professor Draycott has provided expert medical reports in litigations for over 10 years and is instructed by claimants and defenders in a 60:40% split.

[69]      Professor Draycott provided a clear description of the mechanism of labour and birth [cf paras 23-24].  In his view, if a midwife encounters an obstruction then “clearly shoulder dystocia should be diagnosed and appropriate action taken.”  Professor Draycott described the various obstetric manoeuvres to be employed, commencing with the least invasive.  That would entail, in the first instance, after summoning help, placing the mother in the McRoberts position, which would often be used in conjunction with suprapubic pressure.  If unsuccessful then the next manoeuvre would be internal and this would be done by the obstetrician or midwife by placing a complete hand in the vagina exactly at the 6 o’clock position.  This would allow delivery of the posterior arm which would reduce the width of the baby by about 10% and is usually enough to deliver the shoulders.  If that is not successful then, with the hand still in the vagina, it is possible to rotate the bottom shoulders to the left and use suprapubic pressure.  The shoulder should be rotated into the widest oblique diameter to allow delivery of the shoulders.

[70]      Professor Draycott addressed the issue of causation and in so doing he referred to a number of published papers, some of which he has co-authored.  He prefaced his remarks by indicating that medical theories and expert opinions about the causal relationships between birth, management of shoulder dystocia and neonatal brachial plexus injuries have “ebbed and flowed” over the last 20 years.  He acknowledged that opinions had ranged through more recent propulsion theories, which I understood to mean the natural propulsion of birth, could lead to brachial plexus injury without any bony impaction behind symphysis pubis of the mother.  He pointed out that there was recent data which suggested a substantial majority of brachial plexus injuries related to shoulder dystocia and could be prevented with proper management of the condition following RCOG National Guidance.  He also acknowledged that until recently all obstetric brachial plexus injuries including Erb’s palsy were deemed to be as a result of fault on the part of the accoucheur who must have applied excessive traction during difficult delivery of the shoulders.  However, over the past two decades there have been increasing reports of brachial plexus injury in the absence of reported or recorded shoulder dystocia or excessive traction.  Professor Draycott had reviewed the literature on causation of obstetric brachial plexus palsy.  In his report he indicated that the literature had influenced recent judicial decisions regarding the causation of such injuries and, based on this literature and case law, a template was proposed to provide guidance for those assessing issues of causation in clinical negligence claims. That paper, “A Template for Reviewing the Strength of Evidence for Obstetric Brachial Plexus Injury in Clinical Negligence Claims” [Clinical Risk 2008]^[28] was co-authored by the witness and three others.  The conclusion of that paper was as follows:

“Causation of obstetric brachial plexus injuries is multifactorial; evidence suggests that while some cases are traction mediated, others may not be. There is a growing acceptance in both the medical literature and case law that the propulsive forces of uterine contraction may play a part.  The assumption that the presence of an injury is evidence that traction must have been applied is no longer valid.  Injury may occur regardless of the best efforts of the accoucheur.   Diagnostic traction is acceptable and claimants now need to demonstrate factual evidence of the use of excessive force or other inappropriate management to succeed in arguing negligent management”.

[71]      That was the starting point for his review of the literature and a discussion on the causes of obstetric brachial plexus injury.  Professor Draycott recognised and identified some of the limitations in the papers to which he referred. Consideration had to be given to a number of factors: whether the injury was to the anterior shoulder or posterior shoulder, by which I understood meant the position of the shoulder at the point of birth; whether the injury was temporary or permanent; and the extent and seriousness of the injury.  In Professor Draycott’s view, if the injury was permanent it was more likely to be associated with shoulder dystocia.  He referred to a paper by Gurewitsch et al, namely, Risk Factors for Brachial Plexus Injury with and without Shoulder Dystocia (American Journal of Obstetrics and Gynaecology 2006)^[29].  That study suggested that 90% of permanent brachial plexus palsies followed shoulder dystocia.  Professor Draycott concluded that the published data “are against the idea that it is more likely that there was not a shoulder dystocia in the index pregnancy when there was a permanent brachial plexus injury.”  Whilst it is recognised that brachial plexus injury can occur in births in the absence of shoulder dystocia, non-shoulder dystocia related permanent brachial plexus injury is uncommon and the majority of these injuries are temporary.  Permanent injuries were those classed as lasting more than 12 months.  Those which resolved before 12 months were classed as temporary.  Professor Draycott was of the view that injuries to the posterior shoulder are more likely to be a function of birth, namely, caused by natural propulsive forces.  It was also possible that a short second stage of labour, namely, less than 20 minutes, was more common in cases of obstetric brachial plexus injury occurring in the absence of shoulder dystocia than in cases with antecedent shoulder dystocia.  That suggested that propulsive forces may be responsible for injury in these instances and he referred to a paper by Poggi et al, Intrapartum Risk Factors for Permanent Brachial Plexus Injury, published in 2003^[30].  In Professor Draycott’s view the second stage of labour in C’s case was not precipitous as it lasted 21 minutes.

[72]      Professor Draycott was asked to comment on the manoeuvres undertaken by midwives in the course of C’s birth.  He acknowledged that there were discrepancies in the accounts between the midwives as to precisely what occurred and there were differences in the accounts given by the parents.  The witness described what was required for the McRoberts manoeuvre, noting that the medical records suggested “abducting the legs” only.  Professor Draycott was of the view that this was not sufficient for a McRoberts manoeuvre and in any event he was of the view that there were not enough accoucheurs in the room to undertake this manoeuvre properly.  Professor Draycott was also of the view that, had the McRoberts manoeuvre with suprapubic pressure been used, it is likely that C would have been delivered without the need for any further manoeuvres or measures.  The RCOG’s guidance (2005) recommended the McRoberts manoeuvre as the single most effective intervention.

[73]      Professor Draycott addressed the issue of causation. He expressed the view that on the balance of probabilities the pursuer’s pregnancy was complicated by shoulder dystocia.  On being asked to comment on the relevance of the parties’ agreement about the time between delivery of head and body as being two minutes, his reply was “then it is very likely to have been shoulder dystocia or it was shoulder dystocia”.  The suggestion of a snug fit was put to Professor Draycott who took the view that this was not a term used in everyday practice.

[74]      Professor Draycott was provided with a summary of the evidence of Sister Murphy and in particular her explanation for not applying suprapubic pressure, namely, that the pursuer was a large lady and before applying such pressure the midwife required to ascertain where the anterior shoulder was positioned.  The only way that she could achieve this was to insert two fingers into the vagina to locate the anterior shoulder.  Professor Draycott was of the view that, although it was good practice to ascertain where the anterior shoulder was, it was not necessary.  In his view it was not necessary to insert a hand or fingers into the vagina because the space available would be restricted and all that Sister Murphy required to do was to look at the baby’s head to see which way it was facing.  He explained the method of ascertaining the anterior shoulder even in the case of a “large lady”.  He did not accept that inserting the two fingers, as described by Sister Murphy, at the 5 o'clock position was necessary or appropriate.  That would be “very uncomfortable” for the pursuer.  In any event any insertion ought to be at the 6 o'clock position and ought to be with a hand, not fingers.  In Professor Draycott’s view the internal manoeuvre described by Sister Murphy, if undertaken, was not performed accurately. 

[75]      Professor Draycott then dealt with the issue of traction and explained that traction is not to be used to make a baby deliver.  A small amount of axial traction, namely, in line with the spine, ought to be used to determine whether the shoulders are free.  Any amount of traction which is more than gentle traction is excessive.  Injury can be caused in two ways, either by the direction of traction or alternatively the force of traction and the more jerky or speedy the nature of traction, the more likelihood of injury.  In relation to the medical note which asserted that there were “four pulls”, Professor Draycott opined that there ought to have been at most two attempts at delivery (pulls):  one for the diagnosis and one further diagnostic attempt, after the mother’s legs were abducted into the McRoberts position to determine whether this had released the shoulders.  When the evidence of the pursuer and her husband were put to Professor Draycott he was of the view that that evidence, if accepted by me, suggested excessive traction.  Professor Draycott was asked to comment on the evidence of the midwives that the student midwife had been timid in her attempts to deliver C.  Professor Draycott’s report states the following:

“Pulling is not about confidence, and this suggests that there could have been excessive traction by a ‘non-timid’, fully trained midwife.  It is noteworthy that senior obstetricians and midwives pulled hardest in a series of simulated shoulder dystocias managed by 140 staff”. 

[76]      This opinion was based on a study undertaken by Professor Draycott and others, the results of which were published in 2007^[31].  The objective of the study was to determine the level and pattern of forces applied during simulated shoulder dystocia.  The samples were divided between senior and junior doctors and senior and junior midwives.  The result of the study was that high forces were applied during two-thirds of simulations, and the senior midwives pulled hardest of all.  Professor Draycott was of the view that if excessive traction had been used then that probably caused the brachial plexus injury to C.  Professor Draycott was taken through some of the medical literature which discussed the causation for brachial plexus injury and while he conceded that much of the data remains correct today, there have been changes in the theories over the past few years.  In particular it is thought that there are different causes for different types of brachial plexus injuries.  In short, one had to consider whether the injury was to the anterior or posterior shoulder; whether the injury was temporary or permanent and consideration required to be given to the extent of the injury and the number of nerve roots which might have been affected.  He referred to a number of papers in support of this view.  He referred to an article by Mollberg et al^[32] which was a prospective study carried out in Sweden and which evaluated the differences of force in downward traction on the foetal head as correlated to the number of nerve roots affected.  Professor Draycott then discussed his own study^[33] which was subsequently published in the course of the proof^[34].  This study showed that with intensive training involving a bi-monthly multi-professional one day intrapartum emergency training course which included 30 minute practical sessions on shoulder dystocia management, the incidence of permanent brachial plexus injury was reduced to nil.  At the time of proof Professor Draycott was able to advise the court that the figure of mothers involved in the study was now in excess of 24,000 and there were still no cases of permanent brachial plexus injury.  Professor Draycott was of the view therefore that permanent injury is almost always avoidable and cannot be caused by the natural propulsion forces of birth because the process of labour has not changed.  He was of the view that, having regard to the extent of C’s injury and the other factors, the injury is due to accoucheur traction.  He specified the other factors such as: the injury to C involved damage to three nerve roots; this was in his view a shoulder dystocia situation; it involved the anterior arm; and the injury was permanent.  This all pointed to the injury being preventable and relating to poor management of shoulder dystocia.  Professor Draycott referred to a study in United States of America^[35], albeit with much smaller numbers than those in his own study, which disclosed that, with additional training, the incidence of severe brachial plexus injury in the presence of shoulder dystocia could be reduced to nil.  Professor Draycott was of the view that where the rate of such permanent injury is reduced to zero, the inevitable conclusion is that the only thing to change is the management of shoulder dystocia.  The witness was then asked to comment on Dr Sanders’ report dated 13 December 2014^[36] and in particular at paragraph 5.9 where Dr Sanders suggested that while “it is widely accepted that excessive traction applied during birth can and does result in injury to the brachial plexus, it is also recognised that such trauma can occur spontaneously”.  In support of the latter part of that statement she referred to an article by Learner in 2008^[37] which was attached to her report.  Professor Draycott commented that that study by Learner was based on a single case report and that it had created a scandal in America with a judge describing it as a sporting chance for being fraudulent^[38].  Professor Learner did not check the medical notes which disclosed that the reference to shoulder dystocia had in fact been scored out.  Professor Draycott suggested that Learner had subsequently acknowledged that he was wrong in his article.  The witness was of the view that the Mollberg study was a much more robust study than a single case report.  He was asked to comment in relation to Dr Sanders’ conclusion of her report at page 23, line 27- 34 as follows:

“There are several aspects of labour, that suggest C was a relatively large baby for his mother and was positioned in the maternal pelvis in a way that made the birth process more difficult.  These included copious liquor draining at membrane rupture, relatively slow progress in labour, some difficulty delivering the shoulders, facial congestion and significant moulding of the fetal skull.  C’s appearance at birth was strongly suggestive of him having been exposed to considerable naturally occurring forces during the birth process, whereas the intervention of Sister Murphy appears to have been minimal”.

 

 

Professor Draycott was of the view that the baby was not very large as it was only 4.2 kilos.  [I noted that the evidence as to foetal macrosomia varied between 4 kilos and 4.5 kilos].  In any event it was not a large baby for his mother who was in excess of 100 kilos.  He did not understand the suggestion that C was in the wrong position and that it was that which made the birth process more difficult.  Professor Draycott referred to the medical records which showed the child at LOA or LOL.  There was no information in the medical records to support the conclusion that the position of the baby in the maternal pelvis would make the birth process more difficult as suggested by Dr Sanders.  He did not agree that this was a slow progress in labour and he did not understand the significance of “copious liquor draining at membrane rupture”.  In short, he was of the view that there was nothing in the records to suggest that there was a substantial force in labour.  Professor Draycott then commented on Professor Mires’ second report dated 12 December 2014^[39].  This was a report which had suggested that C’s injury might have been caused by the expulsive forces of birth combined with factors such as a “relative short second stage” and a baby weighing more than four kilos. Professor Mires had opined that up to 30 minutes was considered to be a short second stage of labour.  Professor Draycott was of the view that Professor Mires had had a superficial view of the literature.  He failed to understand Professor Mires’ reference to 30 minutes because that was almost twice the average time of a second stage of labour for a multiparous woman, namely 18 minutes. The figure used by Professor Draycott and others in his field was 20 minutes as a maximum for a short second stage of labour.  Professor Draycott was of the view that the suggestion of a very fast delivery does not apply in this pregnancy.

[77]      In cross examination Professor Draycott was challenged about his opinions and conclusions.  He was also taken through a number of additional research papers but he did not shift his position that this was a case of shoulder dystocia and excessive traction was used.  The professor was referred to a paper by the authors Sandmire and DeMott^[40] which concluded that only 50% of cases of Erb’s Palsy are associated with shoulder dystocia.  In that paper the authors concluded that, in a large proportion of cases, it was the propulsive nature of the stretching of nerves which is involved and the birth attendant has no control over this.  Professor Draycott was of the view that, although an interesting paper, it does not distinguish between permanent and temporary injury which he emphasised is a relevant factor in considering whether there was fault on the part of the accoucheur.  He also referred to the assertion in the paper which suggested that an increase in Erb’s Palsy is associated with a precipitate second stage compared to one of normal length.  Professor Draycott was of the view that a precipitate second stage is more associated, according to more recent data, with temporary brachial plexus injury.  He referred to his own study during which they had reduced permanent injury to zero with better training of medical staff.  Professor Draycott was challenged also on his assertion that the second stage was not precipitate.  As I understood the suggestion of Mr Mitchell, Professor Mires was expected to give evidence to the effect that, as the second stage was less than 30 minutes, namely 21 minutes, brachial plexus injury could well have been caused as a result of the natural propulsive forces, in the absence of excessive traction by the midwife.  In Professor Draycott’s view this was not a precipitate second stage as it lasted 21 minutes and he referred to the National Institute for Health and Care Excellence Guidance (NICE) which defined the median length of the second stage at 18 minutes. 

[78]      There is no additional material in that cross-examination which I require to summarise, particularly having regard to the view which I have formed on the facts in this case.  Mr Mitchell appeared to criticise Professor Draycott’s description of the conduct of Henry Learner and his paper by producing a copy of the Unites States Appeal Court decision referred to above.  He quoted the words of the judge referring to Learner’s article which said “the plaintiffs have more than a gambler’s chance of proving fraud”.  Mr Mitchell appeared to suggest that that was different to what Professor Draycott implied was said.  The witness disagreed.  Mr Mitchell advised the witness that the case against Learner was dismissed but that did not alter Professor Draycott’s view of the article because the author had admitted that he was wrong.

 

Professor Thomas Carlstedt
[79]      Professor Carlstedt^[41] was the final witness for the pursuer.  He is a retired consultant surgeon who specialised in hand and orthopaedic surgery.  He also specialised in brachial plexus and associated spinal root injuries.  Professor Carlstedt qualified as a doctor in Sweden in 1979 where he worked until 1996 and from then until the present day he practices as a consultant orthopaedic surgeon at the National Orthopaedic Hospital Stanmore.  In 2002 he became a visiting professor at the Imperial College of Science Technology and Medicine in London.  In 2003 he became professor of nerve surgery in University College London and in 2006 became a foreign adjunct professor at the Karolinska Institutet in Stockholm.  Professor Carlstedt has always had a particular interest in brachial plexus injuries and his reason for moving to Great Britain was because the larger caseload here.  He has undertaken approximately 2000 to 3000 operations following obstetric brachial plexus injuries.  He was referred to his CV which he pointed out was rather out of date because he had stopped registering the number of lectures and talks which he had been doing.  He has written in excess of 100 articles on the issue of brachial plexus injury and approximately 15 chapters in books on that subject.  He has undertaken a number of medical/legal reports but this has been decreasing.  He used to undertake approximately 20 to 30 reports each year, mainly for claimants.  He has given evidence in court but he estimated that as less than 10 occasions.

[80]      Professor Carlstedt provided a clear description of the anatomy of the brachial plexus, some of which I have described above.  He went on to provide more information in relation to the degrees of severity of such injuries and the degree of severity in relation to C.  He addressed the probable causes of such injuries and discussed some of the research papers which were referred to by Professor Draycott and others.  He categorised the injury to C as the most severe type.  In spite of a good operative treatment, the injury would be permanent and lead to some disability.  In his view the most severe injury was to the nerve root, C6, and it was most likely that the root had been pulled out of the spinal cord.

[81]      Professor Carlstedt opined that, on the balance of probabilities, the cause of C’s injury was excessive traction at birth.  The professor had reviewed some of the research literature. There was a consensus of opinion that, in severe degenerative obstetrical brachial plexus injuries, external traction was the cause.  Professor Carlstedt acknowledged that there were alternative explanations in relation to these injuries based on theoretical studies, of which he was aware, to the effect that intrauterine contractions or propulsive forces could account for the severe brachial plexus stretch injuries which are seen in children with persistent functional deficits.  He referred, however, to the study by Gurewitsch in 2006^[42].  That study concluded that when following up such children, where shoulder dystocia had not been reported, the injury was transient.  However in most cases with persistent injuries shoulder dystocia had been noted.  He referred to the studies by Mollberg et al in 2007^[43] and 2008^[44] where a proper prospective population based assessment verified that the degree of applied traction during delivery related to the severity of the brachial plexus injury and that the risk of persistent obstetrical brachial plexus palsy depended on obstetrical management.

[82]      The only issue on which the professor was challenged in cross-examination was his assertion that there was a consensus of opinion which tended to support his view that such severe injuries were caused by obstetric management rather than propulsive forces.  He was referred to a further paper lodged by the defenders which was an executive summary of a report of the American College of Obstetricians and Gynaecologists’ Task Force on Neonatal Brachial Plexus Palsy^[45].  The task force recognised that knowledge of brachial plexus injury was continually evolving.  The summary states:

“What is known at this time with reasonable medical certainty is that NBPP (Neonatal Brachial Plexus Palsy) occurs infrequently and can be caused by maternal (endogenous) forces or clinician applied (exogenous) forces or a combination of both.  Similarly, NBPP can occur with or without associated, clinically recognisable shoulder dystocia.  Finally, in the presence of shoulder dystocia, all intervention by way of ancillary manoeuvres - no matter how expertly performed - will necessarily increase strain on the brachial plexus.”

 

Mr Mitchell suggested to Professor Carlstedt that this implied that such injuries were not necessarily accoucheur related.  The professor commented that his opinion was based on the nature and severity of the injury to C and not to all brachial plexus palsies.  The passage quoted above was read out to Professor Carlstedt and he was asked if agreed.  He agreed but only as long as there was an acknowledgement in that study of the nature and extent of the injury in coming to this view.  That could not be determined from the summary.  Professor Carlstedt acknowledged that maternal forces can cause such an injury however it is transient.  I did comment to Mr Mitchell that what had been produced was only an executive summary and that there appeared to be no information as to the basis of the research group.  I also noted that there appeared to be no distinction, at least in that summary, between permanent and temporary injuries.  This document was lodged on 20 February, after Professor Draycott had concluded his evidence and he was unable to comment upon it. 

[83]      On an examination of the medical records involving C, Professor Carlstedt was able to say that when the surgery was performed by Professor Kay, there were typical signs of nerve traction with neuroma formation.  The nerve fibres had been interrupted and generative changes had occurred, followed by an attempt by the nerve to repair itself but the injury was so severe that the regenerative ability of the nerves was insufficient to overcome the degree of injury suffered by C.  His view was based on his experience and also with long and thorough studies of this condition.

 

Dr Julia Sanders
[84]      Dr Julia Sanders^[46] is a consultant midwife at the Cardiff and Vale University Health Board and a reader at the School of Health Care Service Science at Cardiff University.  She qualified as a registered general nurse in 1984 and as a midwife in 1986.  She has held the post of consultant midwife since January 2004 and in that role, which she undertakes for approximately 10 hours per week, she acts as a lead clinician to a large midwifery led unit which provides intrapartum care to around 2000 women annually.  She has acted as a midwifery expert since 2007 and has been instructed by solicitors acting for claimants and defendants.  She has written over 30 reports, 80% of which were for defenders and she has given evidence in court on three occasions, all of which were for defenders.  She had personal experience of cases involving shoulder dystocia.  She could not provide the number of the cases in which she had been involved but she estimated them as approximately two to three a year, from 1986.  The last serious case she dealt with was 18 months prior to the date of proof. 

[85]      Dr Sanders had provided one report in connection with the present case, dated 13 December 2014^[47].  On the afternoon of 10 February the witness sat in on part of the evidence of Sister Murphy.  Dr Sanders was of the view that C’s birth was not complicated by shoulder dystocia.  This was a case of delayed labour and the entry in the medical notes at 0430 hours that there was a spontaneous rupture of the foetal membranes with “copious amounts” of clear liquor draining was evidence that the foetal head was poorly fitted into the maternal pelvis, possibly suggesting that the foetus was in an occipital posterior position and, if so, this may have contributed to the relative delay in labour.  It was difficult to follow how Dr Sanders had reached this conclusion.  She commented on the duration of the labour during the first and second stages and indicated that, in her view, this was a relatively slow labour, considering that the pursuer had given birth 11 months previously.  While this duration would not be classified as an obstetric delay, in the witness’ view, C’s increased weight, being two pounds heavier than his brother, contributed to the relative delay in labour and may have contributed to the difficulty in delivering the foetal shoulders.  She was of the view that the size of the baby and “everything about the labour” would suggest that C was a tight fit against his mother.  She also used the words “snug fit”.  In her view, had excessive traction been used in the situation where the child’s shoulder was impacted behind the symphysis pubis, the midwife would have ended up by pulling the mother down the bed and this would not have delivered the baby.

[86]      Dr Sanders addressed the use of the HELPERR mnemonic.  In her view that procedure did not follow a logical order and clinicians could deviate from the prescribed order depending on the situation.  She was the only witness, including the experts, to suggest this, although most agreed that an evaluation for episiotomy was ongoing throughout the procedure.  With regard to the definition of shoulder dystocia, the witness was of the view that in the previous editions of the Myles Textbook for Midwives the definitions for that condition up to 1999 were more “liberal”.  It could include situations where the foetal shoulders were not aligned to the anterior-posterior diameter of the pelvis at the outlet and which may require some manual rotation to facilitate birth.  This did not mean however that a bony impaction existed but having regard to the definitions up to 1999, a midwife might well diagnose shoulder dystocia without any bony impaction.  In the 13^th Edition of Myles, the definition of shoulder dystocia, in line with what was taught by ALSO, was confined to difficulty delivering the shoulders because of a bony impaction.  In Dr Sanders’ view, an alternative explanation existed in the present case, namely, that C’s shoulders had not completely aligned into the anterior/posterior diameter of the pelvic outlet.  The ease with which Sister Murphy located the shoulder and rotated them meant that the shoulder was much lower in the pelvis and not trapped behind the symphysis pubis.  There was no bony impaction in the present case.  There were no obvious signs of shoulder dystocia such as turtling of the foetal head.  She had no criticisms of Sister Murphy’s conduct in the case.  She had no criticism of Sister Murphy’s failure to summon help even though she must have diagnosed shoulder dystocia at the time.  In Dr Sanders’ view, even a “high suspicion of shoulder dystocia would not result in the emergency procedure. There would have to be a definite diagnosis.” I formed the impression that the witness was rather hesitant when expressing this statement.

[87]      The witness addressed the more objective definition of shoulder dystocia, namely, a head to body delivery time in excess of 60 seconds.  The witness disagreed with this definition.  She accepted that she could point to no literature to support that position but hoped that there would be in the future.  When asked from what source she said, “a future PhD student.”  In the witness’ experience a head to body delivery time in excess of one minute was normal as was the time delay of two minutes in the present case.

[88]      The witness appeared to take a rather selective view of the evidence in the sense of selecting which parts of the evidence tended to support her position that this was not a case of shoulder dystocia.  I regret requiring to make this observation in connection with an expert witness but I was left with the clear impression that this is what she was doing, repeatedly, in the course of her evidence.  For example, the evidence of the pursuer and her husband was that the pursuer’s position had never been changed from sitting up on the bed.  Her feet remained flat on the bed.  Midwife Sutcliffe had also implied that the pursuer’s feet remained on the bed and all that Sister Murphy had done was to ask her to widen her legs.  Sister Murphy’s evidence was that the full McRoberts position had been undertaken and that involved the pursuer lying flat on the bed with her legs lifted off the bed and her knees placed near her ears.  Dr Sanders said at one point that to achieve a full McRoberts would “take you beyond the timescale” of the agreed time of two minutes between the delivery of the head and body of C.  This implied that she did not accept that the McRoberts manoeuvre had been adopted and would clearly contradict Sister Murphy.  However Dr Sanders concluded that the McRoberts manoeuvre had not been undertaken properly or fully.  What she meant by this was unclear and in any event there was no factual evidence whatsoever to support this position.  The witness seemed to conclude however that some movement in the pursuer’s position had been adopted and thus appeared to alter the facts.    Again, despite the evidence of the pursuer, her husband and Midwife Sutcliffe, this witness appeared to accept that Sister Murphy had indeed inserted her fingers into the vagina of the pursuer.  It was this evidence that led her to the view that the foetus must have been lower in the pelvis than would have been necessary for a bony impaction.  Based on this evidence, which she clearly appeared to accept without question, this meant that there was no bony impaction.  Accordingly this was a case of delayed delivery and a tight fit.  There were, of course, other factors which she took into account, such as the draining of copious liquor, albeit not supported by other expert witnesses.  In justifying the position that others within the room might be unaware of the insertion of fingers into the vagina her position was that it was obviously not a “memorable event”.  That explained why Midwife Sutcliffe was unable to recall it. The pursuer would be unable to distinguish between the pain of delivery and the insertion of fingers into the vagina.  The witness used the phrase “quite plausible” when explaining why Midwife Sutcliffe might not have recalled it.  At one point she opined that the fact that Midwife Sutcliffe did not recall the birth was “really important” because it suggested that it was not “a particularly traumatic event at the time.”

[89]      I accept that Dr Sanders is highly qualified in her field but she had to be reminded several times during her evidence that she was an expert witness and that she should refrain from attempting to provide opinions of what her view of the facts of the case was.  Her approach to the evidence was in contrast to the midwifery expert called by the pursuer, Mrs Tranter.  Mrs Tranter had the advantage of having heard the evidence but at no time did she attempt to suggest what view she had formed of that evidence.  In my view this witness recognised her duty to the court as an expert witness.   I accept that comparing the CV’s of both these witnesses it could be said that Dr Sanders’ experience of actual cases of shoulder dystocia was greater than Mrs Tranter but that is not the only factor that I require to consider.  When comparing the roles as expert witnesses I preferred the approach taken by Mrs Tranter.  She was clearly a very experienced midwife and she gave her evidence in an open and honest manner and made appropriate concessions. For the reasons that will become clear later in this opinion and having regard to the view which I have formed on the factual evidence I find it unnecessary to make any further comments about the evidence of these two experts.

 

Professor Gary J Mires
[90]      Professor Gary Mires^[48] is a Professor of Obstetrics and Honorary Consultant at the University of Dundee.  As of 2014 he became the Dean of Medicine and Director of Medical Education Institute at the University of Dundee School of Medicine.  As Honorary Consultant he contributes to the delivery of general and specialist obstetric services.  He has a special interest in foeto-maternal medicine and, until September 2013, was the lead obstetrician for multiple pregnancies and pregnancies complicated by diabetes and endocrine disorders in Tayside.  He was clinical lead for obstetrics, gynaecology and genital urinary pelvic medicine in Tayside from 2002 to 2006 and he was awarded a personal chair in obstetrics in 2006.  From about 1993, half of his time was engaged in clinical work and half in education duties at the university, but as he has been promoted in the university he is spending less time on clinical work.  In the course of the previous year his duties were divided:   30% in clinical work and 70% in the university.  His clinical work has been concerned entirely in obstetrics.  He has written or co-authored a number of articles and papers relating to his interest in obstetrics and medical education.  He has published no papers in relation to shoulder dystocia or the causes of obstetric brachial plexus injuries.  He has undertaken very few reports for the court which he estimated as approximately one per year “every other year”.  All of his reports have been written for defenders.  This was the first occasion on which he has given evidence in court.

[91]      Professor Mires provided a first report in June 2014^[49].  In preparing that report he had access to the medical records and the statements of the midwives contained in the correspondence relating to the pursuer’s complaint about management of her son’s birth.  In his first report Professor Mires was asked to consider the obstetric management of the pursuer at the time of C’s birth.  With the exception of the pursuer’s weight there were in his view no additional signs which would have predicted shoulder dystocia at delivery. Maternal obesity is associated with larger babies.  It can also make assessment of foetal size, abdominally, more difficult because of the difficulty in palpating the pregnant uterus.  In these circumstances it would be difficult to assess whether the foetus was a large baby or not.  In preparing this report Professor Mires appeared to have accepted that shoulder dystocia existed in this pregnancy.  He emphasised that there were no antenatal or intrapartum indicators to generate a high index of probability of shoulder dystocia.  On the information which he had at that time, shoulder dystocia appears to have been managed appropriately.  He summarised some of the facts spoken to by other witnesses. His report records that, after the student midwife’s failure to deliver the baby, the McRoberts manoeuvre was performed as a first manoeuvre to attempt to deliver the shoulders.  His report continues:

“this appears to have had the desired effect with the baby being delivered very shortly afterwards by the senior midwife.”

 

In his view, the existence of shoulder dystocia in this birth was acknowledged and it was adequately managed.  It was appropriate for Sister Murphy to attempt diagnostic traction after the student had failed to deliver and after the pursuer was put into the McRoberts position.

[92]      Professor Mires provided a second report dated December 2014^[50].  In this report he was asked to consider the issue of causation in the absence of excessive traction during delivery.  The report also refers to “Additional information available from the statements of the staff involved in the delivery.”  He comes to the view that:

“Having reviewed my report from 2004 and considered in light of a further review of the case notes and additional information provided in the statements by the student midwife and midwife who completed the delivery my opinion remains that excessive force does not seem to have been applied in this case.”

 

I would simply note that there is no indication as to what this additional information was and it is not apparent that Professor Mires was given any information as to the position of the pursuer.  In that report Professor Mires refers to research in relation to causation.  He recognises that obstetric brachial plexus injury causation is multifactorial and there is a growing acceptance that maternal forces, including maternal expulsive forces and uterine contractions, may play a part in that causation.  The witness referred to papers by Sandmire and DeMott from 2000^[51] and 2002^[52] and the papers by Gherman et al in 1997^[53] and 1998^[54]  (his report erroneously dates this second paper as 1995 and it was not referred to in evidence) which support the view that some cases of brachial plexus injury are unavoidable events.  He appeared to suggest that studies suggested that there was no relevance to the distinction between permanent and temporary injury.  He was taken through a number of other papers, some of which had been discussed with Professor Draycott and he addressed what he considered were limitations in these studies.  For instance, in the study carried out in 2008 by Mollberg et al^[55] there was evidence of other manoeuvres used in the course of the births, such as fundal pressure, and those could have had an impact on the severity of the injury.  I do not propose or consider it necessary to list all of his criticisms and comments in relation to these papers but I had regard to them when reviewing the research.  The witness did not disagree with the suggestion however that if there was permanent injury to the anterior shoulder in a shoulder dystocia situation it is likely to be associated with excessive traction. 

[93]      In the witness’ view, the fact that the second stage was less than 30 minutes supported the theory of propulsive forces as a possible explanation of how the brachial plexus injury could have occurred in the case of C.  The second stage of labour was in his view precipitous.  This was in contrast to Professor Draycott’s assessment of the second stage of labour and, interestingly, was in contrast to Dr Sanders who came to the same conclusion as Professor Mires about the probable cause of C’s injury but she opined that the second stage of labour was “relatively slow”.  Professor Mires was asked in cross-examination why he used 30 minutes as the upper limit of a precipitous second stage and while he acknowledged that the published NICE guidance was 20 minutes he had obtained the figure of 30 minutes from a “presentation”.  He did not consider that there was a great difference between 18 minutes as the average time of second stage (NICE guidance), the upper limit of 20 minutes, spoken to by Professor Draycott, and the length of the pursuer’s second stage of labour, namely 21 minutes.

[94]      Another factor which Professor Mires considered relevant was the position of the foetal shoulders at the point when Sister Murphy inserted her fingers into the vagina.  He appeared to accept this and, if correct, the anterior shoulder must have been lower in the vagina than behind the symphysis pubis.  Had the shoulder been in that position, namely behind the symphysis pubis, it could not have been accessed with use of fingers and to have dislodged it would have required “extreme traction”.  That would have been obvious to those in the delivery room.  In his view there was no evidence of that in the statements.  Accordingly this was not shoulder dystocia, just a big baby or a tight fit. 

[95]      While Professor Mires acknowledged Professor Draycott’s expertise in obstetric emergencies such as shoulder dystocia and the causes of brachial plexus injury, all he wished to communicate was that one could not be dogmatic as to causal connections and there were other possible causes for C’s injury.  What I took from his general evidence about these various research papers was that there was no certainty in such cases.

[96]      It is apparent from this report that Professor Mires was provided only with the statements of the midwives as well as the medical records and he has accepted that the McRoberts manoeuvre was performed despite there being no record of that in the medical records nor did Midwife Sutcliffe describe it in her statement.   He was of the view that the midwives had acted perfectly properly and it would be in order for Sister Murphy to attempt a diagnostic test to assert whether there was any difficulty in delivering the baby.

[97]      I do not find it necessary to summarise all of Mr Creally’s cross-examination of Professor Mires.   The witness was however asked about the additional information which he had before producing his second report and he was questioned as to why he had not provided the alternative view as to causation in his first report.  He stated that the alternative view was expressed after he had had a meeting with the defenders’ senior counsel and when he had been shown statements from the student midwife, Midwife Sutcliffe and Sister Murphy. He made no mention of an alternative explanation in the first report because he was only asked to give an overview of the management of labour by the midwives.  I did not find this a satisfactory explanation.  I imply no criticism whatsoever of the defenders attempting to seek an alternative explanation for the injury to C.  As has been identified in the course of this proof, this is a difficult area, knowledge of it is evolving and professionals are continuing to undertake important research.  I would however have expected an expert witness called to provide expert evidence on causation, and presumably qualified to do so, to have identified this issue at a much earlier stage, particularly having regard to the importance of this issue.  I noted that his first report post-dated the research papers to which he referred in his second report.

 

Discussion
[98]      In the present case there was no dispute on the law to be applied.  I am obliged to counsel for their very full written submissions and relevance to case law.  I find it unnecessary to summarise those submissions or the case law referred to.  Parties were agreed that, if it was proved that excessive traction was used by Sister Murphy in the face of a shoulder dystocia situation and if it was proved that she had not followed the procedures in place as at July 1999 to attempt to rectify shoulder dystocia, then the pursuer would succeed.  In my view this case turns largely on the facts of the case.

[99]      There is a significant factual dispute between parties as to what occurred during the birth of C and for that reason I have provided a detailed summary of the testimony of each of the witnesses to fact, including the many contradictions which emerged in the course of the proof.  Before coming to a view on liability the first question I have to address is what, on a balance of probabilities, occurred on 19 July 1999.  The pursuer’s case is that: C’s delivery was delayed by shoulder dystocia; Sister Murphy failed to recognise and diagnose the condition; she failed to recognise an obstetric emergency; she failed to manage that emergency properly; and she applied excessive traction to achieve delivery of C.  As a result significant injury was suffered by C.  The extent of the injury is not in dispute but causation is.  The position of the defenders is that the pursuer has failed to prove that shoulder dystocia existed and has failed to prove that Sister Murphy applied excessive traction.  In particular the pursuer has failed to prove that C’s anterior shoulder was impacted behind the pursuer’s symphysis pubis.  It was submitted that unless the pursuer is able to prove that the shoulder was impacted and that excessive traction was used by Sister Murphy the pursuer’s case must fail.  Although the defenders need not do so, an alternative explanation is offered for the injury to C.  As I understood this part of the case for the defenders it was suggested that C, being a large baby, was a “snug fit” and his injury could have been caused as a result of the natural propulsive forces of birth.  It was submitted that that alternative explanation is supported on the evidence which would tend to suggest that this was not a case of shoulder dystocia and it is further supported by expert evidence led on behalf the defenders.

[99]      Clearly the fact that this proof examined an event which occurred in excess of 15 years ago has created difficulties for the recollections on the part of witnesses to fact.  I accept however that, difficult as it may be, the onus remains on the pursuer to prove her case and I must have regard to the passage of time in assessing whether any prejudice exists to the defenders in seeking to rebut the testimony of the pursuer and her husband (Hepburn v Royal Alexandria Hospital NHS Trust 2011 SC 20, para 42).  Reference was made to notes in medical records, the maternity notes, and to statements made within two months of the delivery by Sister Murphy and Midwife Sutcliffe^[56].  Regrettably, the standard of record keeping was poor and the most basic information was not included in the notes, for example: the time at which Sister Murphy and student Midwife Kerr entered the delivery room; the time at which Kerr took over the delivery of C; the timing of the delivery of C’s head; the fact that he was born with the nuchal cord tied tightly round his neck (the existence of a nuchal cord is referred to in the labour and delivery summary^[57] but it is not referred to in the contemporaneous notes completed by Midwife Sutcliffe^[58]); the timing of the clamping and cutting of the nuchal cord; the precise timing and number (apart from the retrospective note) of the attempts to deliver C’s body after delivery of the head and who undertook those attempts; when shoulder dystocia was diagnosed; what actions were taken after that diagnosis was made.  Midwives Murphy and Sutcliffe accepted that the medical notes ought to have been fuller, even by what was suggested to be the more relaxed standard which appeared to exist in 1999.  I accept that it may be difficult to make notes while an obstetric emergency is taking place but there was no proper explanation why a more detailed retrospective note was not made when it was apparent that Sister Murphy had made a partial retrospective note, although she now disagrees with that note and claims that it was inaccurate.  In any event, Midwife Sutcliffe was the person writing the notes and apart from recording some of the events she, at least according to her own evidence, took no physical part in the delivery of the baby. She did not appear to regard what happened as an obstetric emergency.  All she did was to write notes and advise the student midwife.  There was no excuse for her not to have recorded all or some of the information detailed above.  I accept that there is no causal link between failure to make adequate notes and the injury to C but the failure accurately to record events has certainly not aided witnesses’ recollections and more importantly has in my view made it more difficult for the experts to know precisely what occurred during the delivery.

[100]    Ultimately, after analysing all of the factual evidence in this case I am satisfied that both the pursuer and AD were credible and reliable in the essentials of their evidence.  I recognise that there were discrepancies in that evidence but I would have been surprised, after the passage of 15 years, if no discrepancies existed.  The birth of their second child was a major event in their lives.  Immediately after his birth there were concerns for C’s welfare and subsequently it was discovered that during his birth he had suffered a significant injury which has led to a permanent disability.  It is not likely in my view that they would simply forget about the event or forget about important occurrences during that event.  It was not suggested that either of them was lying and I had no impression of untruthful witnesses.  I note that the pursuer lodged her complaint less than two months after the birth.  Mr Mitchell submitted that I should have regard in assessing the pursuer’s memory of events to the medication she had received during labour and to the fact that she had been awake for almost 24 hours.  With no medical evidence adduced as to the potential effect of such medication I considered that it was inappropriate to attempt to use this factor in my assessment of the pursuer.  Criticism was made also of the pursuer’s researches into shoulder dystocia and brachial plexus injury and to the probability that she had discussed what occurred with her husband.  I considered these factors but they did not alter my view of the pursuer.  AD provided less detail of what occurred in July 1999.  He was attempting to support his wife during labour and was not aware of all that happened.  However I was satisfied that he too was credible and reliable in the essential facts.  Both witnesses were clear that during the second stage of her labour no significant change of the pursuer’s position on the bed occurred.  Inevitably that must mean that the McRoberts position was not adopted. In addition I do not accept that any internal vaginal manoeuvres, as described by Sister Murphy, were undertaken.  All witnesses including those expert witnesses who were asked about this, except for Dr Sanders, were agreed that internal manoeuvres described by Sister Murphy would have been painful or extremely painful or at the very least uncomfortable and unpleasant.  In such circumstances I find it difficult to accept that the pursuer would have been wholly unaware of them, had they taken place as described by Sister Murphy.  Dr Sanders suggested that the pursuer would probably not be able to differentiate between the pain of birth and the pain of such an invasive procedure but Professor Mires emphasised the importance of communications with the patient particularly when undertaking such a procedure.  He was of the view that medical staff would not stop to explain what they were doing in the case of an obstetric emergency but it was essential to warn the patient what was about to happen.  There was no suggestion from either of the midwives that such a warning was given to the pursuer. 

[101]    On these particular issues I also had the benefit of the evidence of Midwife Sutcliffe.  I am satisfied that this witness was doing her best to tell the truth.  I have no doubt that the passage of time has affected her memory.  She preferred to rely on her statement in September 1999^[59], written in response to the pursuer’s complaint.  Her position was that shoulder dystocia was never diagnosed and she did not believe such a condition existed.  She was however a newly qualified midwife and she had allowed Sister Murphy to take over.  She was clear that no manoeuvres of the type required where there is a suspicion of shoulder dystocia took place during this birth.  Had there been, she would have recorded that in her statement.  The pursuer was not put into the McRoberts position and no internal manoeuvres were performed.  To that extent I accepted the evidence of Midwife Sutcliffe.  This evidence supported that of the pursuer and her husband.

[102]    The only evidence that manoeuvres were adopted to assist in this birth came from Sister Murphy.  I regret to say that she was not an impressive witness and I had a number of serious reservations with regard to her evidence.  While I have acknowledged the difficulties that witnesses may have in recollecting events of many years before, unusually, this witness’ memory appeared to improve significantly as her evidence progressed.  She was also prepared to change her evidence.  For example, at the commencement of evidence in chief she gave an impression of not recollecting the detail of the birth of C, preferring to rely on the statement which she made in September 1999.  By the end of her evidence she claimed to have a very clear recollection of the birth to the extent that, although she accepted she had diagnosed shoulder dystocia at some point during or immediately after the birth and acknowledging that she had recorded this in the original notes, retrospectively and at an unspecified time, by the end of cross-examination she was of the view this was not a case of shoulder dystocia but simply a case of a “snug fit”.  In re-examination she stated that there had been shoulder dystocia but to a “mild degree”.  Another change in position occurred in relation to the note recorded as, “manual rotation of the shoulders”.  In evidence the witness stated that this note was in fact inaccurate.  All she had done was to insert two fingers into the vagina at the 5 o’clock position, moved them round, merely touching the foetal shoulders, without any “manual rotation”.  In chief she seemed to accept that, having recognised an obstetric emergency she failed, as any competent midwife would do, to summon assistance.  In cross-examination, on the following day, although she conceded that she had accepted in evidence in chief that she had been negligent, she was now of the view that she had not been negligent.  There were further inconsistencies in her evidence.  At one point in her evidence she recognised the situation as an emergency one which would require a call for assistance. However, because the student midwife had made what she considered timid attempts to deliver C’s body, as the qualified midwife, she needed to ascertain whether there was indeed a difficulty before implementing any emergency procedure.  Even if I were to accept that that was an acceptable course of action, despite the previous two attempts at delivery, that is not what the witness did in fact, at least, according to her evidence.  She claimed that immediately she put the pursuer into the McRoberts position, which I do not accept.  That, according to the evidence, with the exception possibly of Dr Sanders, would be stage two, after summoning help, in a situation where shoulder dystocia was diagnosed or suspected.   She then attempted delivery and this was not successful.  Surely by this time, if true, she ought to have summoned assistance and recognised this was at least potentially a shoulder dystocia obstetric emergency.  Even on her own account at that stage she did not summon assistance but attempted a painful or uncomfortable, invasive procedure which she stated she was not trained to do but had witnessed being done by medical staff.  Thereafter C was born easily and she was “dumfounded” to discover that he had been injured.  I also noted her comment near the end of re-examination, when asked again about the accuracy of her original statement in September, she proffered the explanation that “today” she would have written ”a totally different statement”.   These are only some of the inconsistencies revealed in the evidence of Sister Murphy.  Suffice it to record that I found her, in many aspects of her evidence an unreliable and incredible witness.  Sister Murphy was the only witness to suggest that the pursuer was put into the McRoberts position and the only witness to speak to the undertaking of internal manoeuvres.  I am satisfied that none of these manoeuvres were undertaken.

[103]    I have come to the view that it is reasonable to infer that Sister Murphy believed or strongly suspected that shoulder dystocia existed at some point during the second stage of labour.  She made a retrospective note to that effect shortly after the birth.  The medical notes thereafter reflected that diagnosis and the case appears to have been pled on that basis up to the late minute of amendment lodged in August 2014, ten years after the case commenced. While I appreciate that medical knowledge may change and improve over the space of that time and opinions on causation may alter, it does not alter the fact that Sister Murphy diagnosed shoulder dystocia at the time and failed to implement any of the recommended measures to deal with that situation.  When Sister Murphy took over the delivery it must have been obvious that there was a problem.  She claims that she had to assess the position herself because of the apparent timidity of the student nurse but this was a student midwife who had previously undertaken at least 28 deliveries, according to her workbook, and she must have been sufficiently confident to carry out the cutting and clamping of the nuchal cord, albeit under the direction of the qualified midwives.  Despite the time pressures, the student midwife was permitted to continue the delivery and attempt twice to deliver the baby’s body.  I do not criticise that decision however she was given two opportunities to deliver and, if not after the first attempt, then certainly after the second an obstetric emergency drill for shoulder dystocia ought to have been implemented as the body of C was not following the head as it should have done.  At the very least the emergency drill ought to have been engaged after the first attempt by Sister Murphy failed to deliver the baby.  It is, or ought to have been, clear that an obstetric emergency existed.  It was suggested that the student midwife was timid and at times the words “gentle traction” were used when describing her attempts but as I understood the evidence, particularly of Professor Draycott and Mrs Tranter, all that is required to deliver a baby is gentle axial traction.  Both Sister Murphy and Midwife Sutcliffe acknowledged that a degree of anxiety existed in the delivery room.  When Sister Murphy took over she was obviously anxious to deliver C as soon as possible, particularly in view of the nuchal cord having been cut.  Regrettably she failed to follow the protocol which existed at a time when she must have suspected or ought to have suspected that shoulder dystocia existed.  She made two further attempts to deliver C without changing the pursuer’s position in the bed and on the second of her attempts the baby was born with a severe brachial plexus injury.  It is reasonable to infer that Sister Murphy, realising her mistake to follow protocol, has lied about the use of “manual rotation” and has lied when asserts that the McRoberts manoeuvre was adopted.

[104]    The next issue I require to consider is whether Sister Murphy used excessive traction to deliver C.  I am satisfied that there was excessive traction in this case.  I prefer the evidence of the pursuer and her husband to that of Midwife Sutcliffe and Sister Murphy.  I do not believe Sister Murphy’s evidence that she did not use excessive traction.  In respect of Midwife Sutcliffe I cannot conclude that she lied but I do not find her reliable on that issue.  Her memory of this birth was not good and there is nothing in her September 1999 statement about the degree of traction used.  The witness had difficulty in recollecting details.  On the issue of the level of force used to achieve delivery she said in evidence that the student midwife pulled timidly and she told her to try again or “I presume I said that”.  She stated that Sister Murphy was “more forceful” than the student and when asked how Sister Murphy pulled on the next occasion she said “I imagine the same force as before”.  The witness did not think that the pulls were excessive.  From the parents’ description of the way that Sister Murphy delivered the baby, which I accept, it is reasonable to infer and thus conclude on the balance of probabilities that excessive traction was used in the course of this birth.

[105]    I now turn to consider whether it is proved on the evidence that a shoulder dystocia situation did in fact exist.  On that issue I am satisfied that on the balance of probabilities it did.  I am satisfied that prior to the delivery of the body of C his anterior shoulder  had become impacted on his mother’s symphysis pubis. 

[106]    My conclusion on this issue is supported by the fact that there was a diagnosis of the condition at the time by Sister Murphy who was then an experienced midwife.  She must have recognised the condition at some point because she included it in the medical notes.  I cannot come to a view whether Sister Murphy actually recognised this as a case of shoulder dystocia when she took over the delivery, particularly having regard to my view of her credibility and reliability, but she certainly ought to have done.  Whatever she now says in evidence some 15 years after the event she clearly diagnosed shoulder dystocia at the time.  Whether this was during or immediately after the event I cannot say but as the midwife in charge she was in the best position to assess whether shoulder dystocia existed.  When she took over it must have been obvious that there was a problem.  After delivery of the head, the fact that it took four attempts to deliver the body of C meant that there was a difficulty in delivering the shoulders.  Sister Murphy has recognised that she ought to have put the pursuer into the McRoberts position because she has seen fit to lie about that matter.  She started that lie in her first statement in September 1999 and she has continued to lie about that.  All the witnesses, except Midwife Sutcliffe, including all of the experts, were of the view that the McRoberts manoeuvre ought to have been adopted at some stage having regard to an obvious difficulty in delivering the shoulders. Inevitably it follows that this was a delivery which necessitated ancillary obstetric manoeuvres to achieve delivery of the body and that fulfills one of the definitions for shoulder dystocia.  Of course I recognise that no ancillary obstetric manoeuvres were used but the delivery was only achieved by the use of excessive traction instead of the recommended ancillary manoeuvres. 

[107]    I preferred the evidence of Professor Draycott to the effect that shoulder dystocia can be overcome by excessive traction without ancillary manoeuvres being implemented.  I do not accept Sister Murphy’s evidence on this issue and I do not accept the evidence of Dr Sanders who implied that it could not be overcome, without pulling a mother of in excess of 100 kilograms down the bed.  I have already commented on the tendency of this witness to manipulate the evidence to support her opinions.  In addition the time between the head and body delivery was agreed at two minutes.  That exceeds the length of time which Professor Draycott described as a more objective definition by reference to the paper by Spong and others^[60].  It is also important to note that that delivery in two minutes was only achieved after Sister Murphy intervened.  Had she not intervened and used excessive traction it is reasonable to infer that the time between delivery of the head and body would inevitably have been greater.  I am also of the view that, if it took excessive traction to achieve the delivery, then on the balance of probabilities, having regard to the fact that no ancillary obstetric manoeuvres were undertaken, and having rejected the factual evidence from Sister Murphy that the baby’s shoulders were lower in the pelvic area than behind the symphysis pubis, something was preventing delivery of the shoulders and the most probable cause was the impaction of C’s anterior shoulder behind the pursuer’s symphysis pubis. 

[108]    All the experts are agreed that if shoulder dystocia existed and Sister Murphy failed to implement ancillary manoeuvres to release the anterior shoulder but applied excessive traction then what she did fell below the standard of an ordinary competent midwife.

 

Causation
[109]    Mr Mitchell, very fairly in my view, conceded in his submissions that if the pursuer proved that Sister Murphy applied excessive traction to C’s head in the context of a bony impaction, the defenders could not argue that there was another cause for the child’s injury. That was a proper and correct concession but in view of the extent of the expert evidence led in this case I consider that I ought to discuss, albeit briefly, some of the expert evidence led in relation to causation as well as the evidence led in support of the alternative explanation for C’s injury.  I ought also to provide some further explanation for my preference for the pursuer’s expert witnesses over those of the defenders.  I am satisfied that the expert evidence, particularly from Professor Draycott, Professor Carlstedt and Mrs Tranter supported the conclusion I have reached on the facts.

[110]    There appeared to be two possible explanations for the injury to C.  The first was as a result of excessive traction in the face of shoulder dystocia.  The second was that:  there was no bony impaction; C was a large baby; he was a tight fit in his mother’s pelvis; and his injury could well have been caused in the course of birth as a result of the natural propulsive forces of birth.  In this situation no fault could be laid at the door of any birth attendant.  The injury was unavoidable.  This alternative explanation appeared to be supported by Dr Sanders and Professor Mires.  It is relevant to record however that those opinions were based on their view of the facts and in particular that Sister Murphy acted appropriately, she adopted appropriate ancillary manoeuvres to deal with an obvious difficulty in delivering the body of C after delivery of his head and she did not use excessive traction.  Having come to a contrary view on the facts there is in my view nothing on the evidence to support the alternative explanation for C’s injury.  An important fact which appeared to influence both Dr Sanders and Professor Mires was the contention that Sister Murphy had inserted her fingers into the pursuer’s vagina and touched C’s anterior shoulder.  That could only have been achieved if the shoulder of C was below the symphysis pubis and not impacted behind it.  As I have indicated I am satisfied that Sister Murphy did not tell the truth about this matter.  Both of these experts also appeared to accept that the pursuer’s position had been altered to assist in the delivery.  I have also rejected that evidence.  There is in my view no factual evidence to support the opinions expressed both by Dr Sanders or Professor Mires to the effect that C’s anterior shoulder was lower in the pelvis than behind the symphysis pubis.

[111]    It was difficult to follow how Dr Sanders considered that the second stage of labour was relatively slow while Professor Mires was of the view that it was precipitous.  Both witnesses considered the length of the second stage as supporting their opinion.  I preferred the evidence of Professor Draycott who, by reference to the NICE guidelines, opined that this was not a precipitous second stage of labour since the median length of the second stage of labour for a multiparous mother was 18 minutes and the second stage in the present case lasted 21 minutes.  It was, in Professor Draycott’s view, within a normal period and not delayed as suggested by Dr Sanders nor was it precipitous as suggested by Professor Mires.  In addition Professor Draycott saw no evidence in the medical notes to support Dr Sanders’ contention that C was positioned in the maternal pelvis in a way that would make the birth more difficult.  Professor Draycott was a far more knowledgeable witness in this subject than Professor Mires or Dr Sanders.

[112]    While I accept that the research currently available does not conclude that all brachial plexus injuries are necessarily the result of excessive traction in the face of shoulder dystocia, it is clear from the evidence of Professor Draycott and Professor Carlstedt that consideration has to be given to the nature and severity of the injury suffered by C, the fact that it was his anterior shoulder which was affected, as opposed to the posterior shoulder, and to fact that the injury was permanent.  When these factors are taken into account in the present case it is more probable than not that the injury to C was caused by excessive traction in the context of shoulder dystocia.  Both of these witnesses have considerable experience and knowledge in this area and I found them impressive witnesses.  That experience and knowledge was supported by reference to the research papers to which each referred.  I do not accept Mr Mitchell’s criticism of Professor Draycott when he suggested that the professor was dogmatic and unreasonable in his approach.  He was certainly very firm but I did not get the impression that he was unwilling to make appropriate concessions.  He recognised that I required to come to a view on the facts and unlike Dr Sanders made no attempt to manipulate the evidence or alter the evidence to fit in with his expert opinion.  While Professor Mires is highly qualified in his field he has no particular expertise in the area of shoulder dystocia or brachial plexus injuries and in fairness to this witness he made no attempt to set himself up as an expert in this area.  What I took from his evidence was the necessity of being cautious when interpreting research papers and the necessity of examining not just the conclusion of each piece of research but the requirement to consider the methodology used in the research.

[113]    Having regard to the view which I have formed on the factual evidence I do not consider it necessary to comment further in respect of the expert evidence.

 

Decision
[114]    I am satisfied that in course of his birth, C suffered a severe brachial plexus injury to his right side as a result of the negligence of the defenders’ employee, Sister Rosemary Murphy and for whom the defenders are responsible.  Sister Murphy failed to recognise an obstetric emergency after the student midwife had been unable to deliver the body of C after delivery of his head; she failed to summon help in accordance with the protocol in existence as at July 1999; she failed to recognise or diagnose the existence of shoulder dystocia before delivering the head of C or if she did recognise the condition in time she failed to follow hospital protocol and implement the required ancillary manoeuvres to deal with such an obstetric emergency; further she used excessive traction to deliver the body of C.  As a result of these failures C was born with a severe brachial plexus injury to his right shoulder.  Accordingly I shall sustain the pursuer’s pleas in law to the extent of the sum agreed as quantum in this case, namely £725,000 and subject to the addition of interest at the rate of 4% per annum from 30 January 2015 to the date of decree.  I repel pleas in law for the defenders.

[115]    I shall put this case out by order to finalise the sums to be awarded once interest has been added.  I shall also hear parties on the issue of expenses which I reserve meantime.