In Sardar-v-NHS Commissioning Board  EWHC 38 (QB) Haddon-Cave J held that the severe (group 4) and permanent brachial plexus injury suffered by my client had been caused not by traction forces but, prior to delivery of the head, by natural forces of labour. He identified those as being the large size of the baby and/or impact of the posterior shoulder on the sacral promontory and/or maternal contractions.
Initially the Defendant had accepted that the injured shoulder was anterior at birth but its case changed. There was a medical record which, if it was accurate, as the Court found it to be, allowed the Court to find that the injured shoulder was posterior at delivery. That was a crucial finding of fact and one which was fatal to our claim. The Judge was not persuaded by our argument that the severity of the injury was probative of it having been caused by traction rather than propulsion. We sought unsuccessfully to persuade the judge that there was little to no scientific or medical evidence that propulsive forces can cause such severe OBPI.
The Judge rejected the Claimant's argument that the severity of the OBPI (grade 4) was not consistent with a propulsive force, finding that "contractions can themselves be very powerful." [paragraph 80(8)].
In submissions I put to the Judge that there was very little evidence that severe, permanent OBPI can be caused by forces of propulsion. We called expert evidence that it was far more likely to be due to forces of traction and that the records of "difficulty delivering shoulder" and "shoulder dystocia" were also consistent with a traction injury. It appeared that there was only one recorded case of a severe and permanent brachial plexus injury having been caused by "natural forces of propulsion" and that case was not from any medical or scientific literature, but was a finding by Jack J in the case of Rashid-v-Essex Rivers NHS Healthcare Trust  EWHC 1338 (QB). Following Sardar, there are now two such cases.
It does not follow from the mere fact that brachial plexus damage is caused by traction applied by an obstetrician or midwife at delivery, that there has been negligence. The recent case on consent - Montgomery-v-Lanarkshire (see my previous blog) is a reminder of the terrible consequences that can occur if delivery is not achieved promptly following shoulder dystocia. In that case the obstetrician the baby suffered from cerebral palsy having endured 12 minutes of hypoxia when shoulder dystocia prevented early delivery of the shoulders after delivery of the head. The accoucheur tried various techniques to deliver the baby and ultimately applied a lot of force to deliver the stuck shoulder. The baby did suffer from Erb's Palsy. Applying force sufficient to cause a brachial plexus injury may be the cost of delivering a child promptly - alive and, it would be hoped, without brain damage. However, the drills are designed to overcome shoulder without causing brachial plexus injury. They include the application of suprapubic pressure.
A new study published online on 17 February 2015 by the Royal College of Obstetricians and Gynaecologists by Crofts and others (the link is to an abstract only I am afraid), demonstrates the huge success of the adoption of an obstetric emergencies training programme - training in drills designed to avoid the application of excessive traction. In a study of births in Bristol where such training had been established, it was found that in a ten year period none of the 17,039 babies suffered permanent OBPI. Nor was the avoidance of permanent OBPI at the cost of an increased incidence of hypoxia or other birth injuries.
The following are my own thoughts about the implications of this study. I am sure that the experts will form their own views and, I hope, set them down in writing.
- Most obviously the study shows that the use of proper obstetric emergency training is very effective in reducing the frequency and severity of OBPI. Indeed, as the authors conclude, the study "challenges the commonly held view that permanent injury is largely unavoidable. Permanent brachial plexus injuries must no longer be viewed as an inevitable complication of shoulder dystocia."
- It seems to me that training to avoid excessive traction would not have any impact on the occurrence of severe, permanent OBPIs due to propulsive forces. Note then that during the ten years of the study there were no cases of severe OBPI at all, i.e. none due to propulsion or traction. Doesn't this study suggest that the occurrence of permanent OBPI due to propulsive forces (over which the accoucheur has no control) is extremely rare?
- In Bennion-v-NE Wales NHS Trust (24 February 2009) HHJ Halbert concluded at para 7.7: "I am not satisfied on the evidence before me that any conclusion can be drawn as to whether the majority of [obstetric brachial plexus injuries] are probably caused by traction, probably caused by propulsion or probably caused by a combination of both." The new study would surely prevent another court from adopting the same position.
- In Sardar, Haddon-Cave J concluded at , that "there is no longer any presumption that BPI is caused by excessive exogenous or iatrogenic (i.e. clinician applied) traction rather than excessive endogenous (i.e. uterine contraction and maternal expulsive forces) combined with impact with the sacral promontory. Accordingly the Claimant's argument ... that injury could only have been caused by the application of excessive force to deliver the baby's torso during delivery is untenable." This study might not establish that permanent OBPI due to natural forces of propulsion is impossible, but it may go some way to supporting the argument that propulsion is highly unlikely to cause permanent OBPI.
The courts have understood the science to be that permanent OBPI may be attributable either to the application of traction or to the natural forces of propulsion and that the fact of a permanent OBPI is not in itself probative of traction having been the causative force. I wonder whether the medical community will continue to support that understanding.
Perhaps the widespread dissemination of training in how to avoid excessive traction will be so successful in eliminating serious OBPI that it will avoid the need for the courts to consider such cases too many times in the future. That is something everyone can wish for.