In this chapter, I review the ways in which the courts have handled a number of obstetric cases that have been brought to trial in the last 5 years, and compare the ways in which cases were approached previously. The aim is to draw lessons for the benefit of lawyers, patients, doctors, midwives, expert witnesses, and hospital managers. The increasing complexity of modern obstetric patients, the rising expectations of society, the shortage of experienced staff on labour wards, and unrealistic expectations of some experts all make it difficult for the courts to handle these cases.
Introduction
It all depends, as the late Professor Joad would preface most of his answers, on what you mean by lessons? To be more precise, lessons for whom and about what? I think we have to address this from various positions and should take into account the points of view of the lawyer, the doctor and midwife, the patient, the trainer, the expert witness, the provider, and the commissioner of care, although not necessarily in that order. Let us begin by identifying a range of recent cases and then look for the lessons. As a result of the fact that these patients are often able to sue many years after the event, some of the lessons from recent cases concern obstetric practices of 20 years ago, but it may be surprising how little has really changed.
Shoulder dystocia
Twenty years ago, we used to regard shoulder dystocia as the most frightening emergency that an accoucheur might face. I can remember being told by Roger Clements, a distinguished expert witness and editor of what is still a useful Handbook on medico legal aspects of obstetrics that he thought that where the defence could justify the trial of labour, and could get the fetus into the birth canal, then almost any Erb’s palsy case ought to be defensible. The most extreme traction could be justified by the need to save life and to avoid intra-partum hypoxic ischaemia as the cord was crushed beside the baby in the half-delivered state.
Then a series of manoeuvres were popularised in the 1990s, which the profession initially took as useful expedients, but which were subsequently regarded as close to a panacea. Certainly, a mandatory duty to apply them developed in the mid-1990s, and this is now close to an ordained sequence. The McRoberts manoeuvre was described in the American Journal of Obstetrics and Gynaecology in 1983, but it had not made it into Myles on Midwives in 1992. It was included by Donald Gibb in his chapter in Clements’ Handbook in that year and by the late Richard Johanson in the 1995 edition of Dewhurst . Thus, cases became hard to defend unless the word ‘McRoberts’ could be deciphered somewhere within the note, confirming that the birth canal had been deliberately straightened by pulling the mother’s knees up onto her abdomen, with her knees flexed whilst supra-pubic pressure had been applied. Young doctors and midwives who had been taught the technique and seen the videos that were circulated were not always taught the essential importance of recording the word. Those who confused the technique with a panacea were not above alleging that if the Erb’s palsy was there, the McRoberts manoeuvre could not have been competently applied.
At about the same time, intra-uterine pressure became a point of contention. Some experts suggested the not-entirely counter-intuitive idea that the fetal shoulder could become the victim of compression between the massive intra-uterine pressure from the uterine fundus and the pubic bones. This battle raged on and off for the best part of a decade. I think the balance of opinion now sees intra-uterine forces as a heretical cause of Erb’s palsy, if only because, if the theory were right, there would be no reason to invoke shoulder dystocia and one would expect to see more palsied upper limbs in the absence of recorded dystocia.
The reality is that the McRoberts manoeuvre and the Wood’s screw manoeuvre have provided the accoucheur with a checklist of things to try. There is no excuse for panic, or the immediate application of massive force against an apparently immovable object weighing less than three kilos. But that does not mean that it will always work, or that the doctor can be blamed simply because the result proves adverse. We seem to have reached a point where it is unfairly difficult to defend Erb’s palsy cases because medical experts come to lawyers with a sceptical attitude. Many of these medical experts have not applied the McRoberts technique themselves more than a handful of times, as have not encountered the problem often. Where experts have encountered the McRoberts technique, there is no way of knowing that the cases they had seen were not much less extreme. There is only one way to find out whether a fetal body will pass through a pelvis. Some experts seem only to have seen the movie. They are inclined to suppose that the registrar should have been able to extract baby out intact because that is the line that so many of them have taken to persuade judges in other cases.
My firm has fought a number of cases of shoulder dystocia, and I have chosen this one to illustrate these debates.
Shoulder dystocia
Twenty years ago, we used to regard shoulder dystocia as the most frightening emergency that an accoucheur might face. I can remember being told by Roger Clements, a distinguished expert witness and editor of what is still a useful Handbook on medico legal aspects of obstetrics that he thought that where the defence could justify the trial of labour, and could get the fetus into the birth canal, then almost any Erb’s palsy case ought to be defensible. The most extreme traction could be justified by the need to save life and to avoid intra-partum hypoxic ischaemia as the cord was crushed beside the baby in the half-delivered state.
Then a series of manoeuvres were popularised in the 1990s, which the profession initially took as useful expedients, but which were subsequently regarded as close to a panacea. Certainly, a mandatory duty to apply them developed in the mid-1990s, and this is now close to an ordained sequence. The McRoberts manoeuvre was described in the American Journal of Obstetrics and Gynaecology in 1983, but it had not made it into Myles on Midwives in 1992. It was included by Donald Gibb in his chapter in Clements’ Handbook in that year and by the late Richard Johanson in the 1995 edition of Dewhurst . Thus, cases became hard to defend unless the word ‘McRoberts’ could be deciphered somewhere within the note, confirming that the birth canal had been deliberately straightened by pulling the mother’s knees up onto her abdomen, with her knees flexed whilst supra-pubic pressure had been applied. Young doctors and midwives who had been taught the technique and seen the videos that were circulated were not always taught the essential importance of recording the word. Those who confused the technique with a panacea were not above alleging that if the Erb’s palsy was there, the McRoberts manoeuvre could not have been competently applied.
At about the same time, intra-uterine pressure became a point of contention. Some experts suggested the not-entirely counter-intuitive idea that the fetal shoulder could become the victim of compression between the massive intra-uterine pressure from the uterine fundus and the pubic bones. This battle raged on and off for the best part of a decade. I think the balance of opinion now sees intra-uterine forces as a heretical cause of Erb’s palsy, if only because, if the theory were right, there would be no reason to invoke shoulder dystocia and one would expect to see more palsied upper limbs in the absence of recorded dystocia.
The reality is that the McRoberts manoeuvre and the Wood’s screw manoeuvre have provided the accoucheur with a checklist of things to try. There is no excuse for panic, or the immediate application of massive force against an apparently immovable object weighing less than three kilos. But that does not mean that it will always work, or that the doctor can be blamed simply because the result proves adverse. We seem to have reached a point where it is unfairly difficult to defend Erb’s palsy cases because medical experts come to lawyers with a sceptical attitude. Many of these medical experts have not applied the McRoberts technique themselves more than a handful of times, as have not encountered the problem often. Where experts have encountered the McRoberts technique, there is no way of knowing that the cases they had seen were not much less extreme. There is only one way to find out whether a fetal body will pass through a pelvis. Some experts seem only to have seen the movie. They are inclined to suppose that the registrar should have been able to extract baby out intact because that is the line that so many of them have taken to persuade judges in other cases.
My firm has fought a number of cases of shoulder dystocia, and I have chosen this one to illustrate these debates.
Case descriptions
Shoulder dystocia: the case of Jack Jones
The case of Jack Jones illustrates just how frightening a complication of shoulder dystocia must be for the accoucheur. Jack Jones was delivered in 1992 at the Hope Hospital, a teaching hospital in Salford with a major obstetric unit. The case was tried in 2010, 18 years later. The key events were that his head was delivered at 17:27 and his body was finally delivered at 17:42. He weighed 5.3 kg.
The sequence of events was that at 17:23 the midwife became concerned that the cord was presenting with the vertex and might have prolapsed. She asked for advice. It so happened that the consultant on duty and the senior registrar were undertaking their ward round and both came into the room before the fetal head was delivered at 17:27. So this baby was delivered by an extremely senior team in optimal circumstances.
The notes showed that, when the fetal head was delivered, the fetal heart fell to 80 beats per minute. When ‘turtle necking’ of the head was observed after the baby emerged, the midwife turned the mother into the left lateral position. When this failed to effect a delivery, the senior registrar took over. He swung the mother around 90° so that she was lying across the bed with her buttocks over the edge. Each of her legs was grasped by a midwife who flexed it slightly and held it parallel to the floor, in effect placing the mother into a lithotomy position. He then cut an episiotomy and, with the next contraction, a third midwife applied suprapubic pressure. The senior registrar applied traction without success. With the next contraction, the senior registrar instructed the midwives to flex the mother’s legs as far back as possible and to abduct them slightly. This was before the term McRobert’s position came into general use but it was the same manoeuvre. Again, it had no effect.
The senior registrar then attempted to insert his hand into the vagina to grasp the posterior arm, but he found his hands were too large and he was unable to fracture the clavicle to reduce the breadth of the shoulder. The consultant then took over and inserted her smaller fingers in front of the posterior shoulder while the senior registrar inserted his fingers behind the anterior shoulder. By this means, they rotated the baby’s body 180°, which allowed the shoulders to be delivered.
This series of manoeuvres was not criticised. It was accepted that left lateral, lithotomy, the McRobert’s manoeuvre, attempted internal manipulation, and joint internal manipulation was a reasonable sequence, and that each of them would normally be separated by the contractions. The criticism was that they took too long.
It was alleged that time could have been saved by going straight to the Robert’s position and not attempting lithotomy. The doctors agreed in retrospect that time could have been saved, but said that, as none of the nurses were familiar at the time with the McRoberts manoeuvre, it was thought wiser to attempt lithotomy first. The Judge thought this was not unreasonable.
It was also suggested that it was negligent to set up an infusion of oxytocin but this did not add materially to the delay. Finally, it was suggested that the consultant should have taken over sooner. The senior registrar was in fact within a year of being appointed a consultant himself, and the expert evidence was that it would be unusual for the consultant to ask him to move over until a specific reason to do so became apparent (i.e. her smaller hands would have been advantageous in the internal manipulation). Overall, the Judge rejected the idea that this was a case where brain damage was caused by a negligent delay in the intra-partum obstetrics.
Antenatal events
Criticisms were also made of the antenatal decision to attempt vaginal delivery. Shoulder dystocia had occurred in a previous pregnancy, and the mother’s body mass index of 42.6 kg/m 2 also increased the risk to her child. The Judge accepted that the baby was macrosomic, and that the maternal obesity and the previous dystocia should have caused them to look more carefully. The defence expert, however, pointed out that the previous two babies had not been particularly large, and he disputed that an ultrasound assessment at 36 weeks was indicated. The Judge found that the mother should have been told of the risk of shoulder dystocia if she gave birth vaginally, and mention should have been made of caesarean section as an alternative mode of delivery. The Judge also found that the defendant would rightly have advised the mother that caesarean section carried risks to both the mother and the baby. The consultant said that she would have advised the mother to continue with a normal birth, as caesarean section posed greater risks for this woman because of her obesity and the fact that she was a Jehovah’s Witness and would a refuse blood transfusion.
This led to an argument about whether the mother was in fact still a practising Jehovah’s Witness. She said she had not practised since she was 13 years old, and her religion would not have deterred her from having a blood transfusion. The mother, however, had given the baby’s religion as Jehovah’s Witness, and the mother had been noted to be a Jehovah’s Witness by one of the neonatologists.
I think the case of Jack Jones is important because it emphasises that shoulder dystocia can be a desperate life-threatening event even when handled by senior staff in optimal circumstances. The risks of shoulder dystocia were emphasised in this case because of the circumstances. The Judge referred to a 1996 review of 56 cases where shoulder dystocia led to death and that, in 47% of these cases, the interval between delivery of the head and the body was less than 5 mins. It is our experience of cases such as Jack Jones that causes us to be puzzled by the over-confident approach that is sometimes taken by the medical experts in court to Erb’s palsies. Since the invention of the McRobert’s procedure, it is difficult to persuade a court that traction injuries are not negligent.
Erb’s palsy: the case of Jack Glover
Erb’s palsy occurred in the case of Jack Glover . Again, the sequence of events was similar. After delivery of the fetal head, the midwife attempted gentle diagnostic traction to confirm dystocia, following which the mother was placed in the McRobert’s position and supra-pubic pressure was applied. Traction was again applied without success.
At that point, the registrar took over and an episiotomy was carried out followed by internal vaginal manoeuvres of the reverse Wood screw and the Wood screw. The final manoeuvre, manipulation of the posterior arm, was successful in delivering the baby, but the humerus was broken in the process and an Erb’s palsy of the anterior arm was subsequently diagnosed. At trial, the allegations that persisted were failing to place the mother directly in the McRobert’s position. It was suggested that the turtle necking originally seen was definitively diagnostic of dystocia, and therefore the diagnostic traction that preceded the McRobert’s position was inappropriate. The experts disagreed about whether turtle necking was definitively diagnostic of dystocia, and the court said it was acceptable.
The second allegation was that the traction after the McRobert’s procedure was excessive, and this was to be inferred from the damage that occurred. Both experts agreed that the force applied by the registrar and delivery of the baby’s arm was appropriate and necessary, but they disagreed whether the midwife had applied excessive traction to the fetal head. On balance, the court found that the evidence was insufficient.
Fractured skull at caesarean section: the case of Zhang v Homerton University Hospitals
The difficulty of extracting the skull from the maternal pelvis provides an analogous problem to shoulder dystocia that is sometimes encountered in delivery by abdominal surgery. We may also anticipate that, from the point of view of the trainer, one of the lessons of recent cases will be that the modern trainee is less experienced than their predecessor and in need of closer supervision. In the case of Zhang v Homerton University Hospitals , however, it was a relatively experienced duty registrar: a doctor with 13 years experience of medicine and 10 years experience of obstetrics, of them at the SpR level, who was confronted with a difficult caesarean section. The baby’s head was impacted deep within the mother’s pelvis in a deflexed right occiput posterior position. The uterus was opened, and the registrar insinuated her hand between the head and the mother’s symphysis pubis to try to flex the head from underneath but she was unable to do so. The experienced midwife attempted to apply pressure per vaginam from below while a consultant was crash called. They were unable to break the seal and the head remained obstinately impacted in the uterus.
The process of freeing the head took about 6 mins, and the fetus sustained appalling brain damage. It was common ground that, if the registrar had deliberately attempted either to rotate the baby’s head or move it laterally, it would have been negligent and the case proceeded on the question of whether or not it could be inferred that this had happened as a result of the baby being born with a depressed fracture of the right parietal bone and associated intra-cranial bleeding, which had led to the baby’s profound brain damage. The registrar described what she had done and insisted that she neither rotated nor attempted to apply lateral pressure to move the head. Unfortunately, the Judge did not accept her evidence.
Interpretation of terminology: Jordan v Whitehouse
The above case evokes the classic issue in Jordan v Whitehouse , where a finding was made against an experienced and able senior registrar on the question of whether the use of the word ‘disimpacted’ to describe the freeing of the fetal head at caesarean section necessarily implied that he had pulled negligently too hard with the Kiellands forceps. The Judge found that he could draw that inference, and both the Court of Appeal and the House of Lords found that the Judge was reading far too much into a word. One cannot help but contrast the sort of experience that a senior registrar in Birmingham in 1971 would have had by comparison with the sort of experience that a registrar of the same age at Homerton would be likely to have in 2010. One of the oddities of the Birmingham case was that Stuart Whitehouse sustained no skull fracture or intracranial bleeding as a result of the allegedly excessive pulling.
The expert: Robertson v Nottingham Health Authority
The expert witness advising the defence in obstetric cases is always in a difficult position. From the point of view of the expert witness, it often seems as if little changes in obstetrics cases. Most of the problems, and indeed the solutions, have changed comparatively little over the past 20 years. The most important technical device to be introduced to this litigation was the magnetic resonance imaging (MRI) scan, which was brought into play in Robertson v Nottingham Health Authority. In this case, the claimant had refused to consent to an MRI until a computed tomography scan was interpreted as showing that there had been a fundamental failure of development of the fetal brain. An MRI was then consented to by the claimant and it did indeed show that, instead of suffering from hydranencephaly, the experts were able to infer from a few strands of glial tissue, that the claimant suffered from multicystic leukomalacia, which was consistent with an insult at around the time of delivery at 35 weeks. Nevertheless, the claim failed because the Judge was not prepared to find that such remarkably extensive damage could have been inflicted as a result of the fetal distress described on the cardiotocography (CTG) during the last few hours of the pregnancy.
Infection after premature rupture of membranes: the case of Amy Ludvig
Few areas, however, are concerned with state-of-the-art medicine. For example, over the past 10 years, experts have been able to tantalise us with a little more knowledge of what happens to the fetus in the presence of an ascending infection. They have advised us for many years that sepsis is a potent cause of brain injury; however, what has become apparent more recently is that, in cases of chorioamnionitis, the damage is probably caused by the cytokine release associated with the initial fetal reaction to inflammation and, in many cases, there may never be a window of opportunity in which the baby could have been rescued.
The case of Amy Ludvig was unusual because it was the claimant who raised the issue of chorioamnionitis. Her case concerned her delivery at 31 weeks gestation in 2002. The claimant’s case was that her mother carried group B streptococcus, which had caused a chorioamnionitis, and that the probable cause of her damage was a fetal inflammatory response to this infection. Mrs Ludvig was admitted to the John Radcliffe Hospital at Oxford at 06.30 am on 22 January 2002 at 31 weeks, following spontaneous rupture of membranes. The CTG was reactive, the white cell count was 10.5, which is normal, and there was no evidence of maternal infection. A high vaginal swab was taken, and steroids were started against the contingency of an imminent premature delivery. The attack on the team at Oxford was based on the fact that the high vaginal swab taken that morning was either lost or not processed. In the event, it was found that it would not have made a difference to the outcome.
Because there was no room in the Special Care Baby Unit at Oxford, Mrs Ludvig was transferred to Cheltenham Hospital, where the same management was continued. The following morning on 23 January 2002, erythromycin was prescribed because the registrar was aware of the results of the Oracle trial, which had shown that erythromycin reduced the risk of pre-term premature rupture of membranes and labour and subsequent neonatal infection. Further blood tests were taken, which showed an elevated white cell count, now 21.2, but a normal C-reactive protein, which suggested the white cell count was elevated by the administration of steroids. The CTG was interpreted as reassuring. The claimant suggested that the mother should also have been given penicillin because of the white cell count. The temperature was 37.5°C, which provoked the usual dispute about whether this was normal, as the doctors suggested, or marginally pyrexial as the claimant’s counsel suggested. By this time, the claimant alleged that the patient should have delivered her baby, but the doctors insisted that they were waiting for the steroids to have their full effect.
The doctors decided to deliver the baby by caesarean section overnight because the CTG was less reassuring, now presenting a baseline of 165–170 bpm.
At delivery, no infection was present. The placenta was sent for culture but the results of that were not available at trial. It was common ground that the baby herself never presented signs of infection with group B streptococcus. The defendant said that, in effect, what had happened was that the baby induced a damaging level of hypocapnia while she was breathing spontaneously on continuous positive airway pressure.
The experts agreed that the administration of betamethasone would cause an increase in the level of white cells, but disagreed about the level. Dr Maggie Blott, who advised the claimant, contended that it could cause an increase of one-third, whereas Derek Tufnell who advised the defence said it could double the white cell count.
Overall, the Judge was not persuaded that this was a case of chorioamnionitis and that, in any event, he was not persuaded that there was a duty to give penicillin to a patient who was already receiving erythromycin. Interestingly, he added that medical science had not yet established the time scale of the development of a fetal inflammatory reaction syndrome, and the evidence did not persuade him it was possible to say how soon after the syndrome began that brain damage is sustained, such that exposure to infection makes no material difference. He simply could not tell whether treatment would have been given too late. We are constantly being shown new research on the subject of chorioamnionitis, and it is an area that needs up-to-date guidance from experts as this case shows.
Scanning the unborn brain: the case of C, the child of CC and GC
Fetal medicine is another area in which state-of-the art advice is needed. C, the child of CC and GC, was scanned at 20 weeks on 10 July 1995 at Blackpool. The ultrasonographer failed to identify schizencephaly, a condition characterised by the presence of clefts lined with grey matter within the cerebral hemispheres. That is not entirely surprising: at the time, no case of the condition being diagnosed on ultrasound at 20 weeks had been reported. The casual observer might suppose that that was an end of the matter; however, the way in which the court approached the case may be instructive for doctors and scanners.
First it was said that there might be no duty to make the diagnosis but that was a minor matter, because, if he had recognised that there was something odd he would have referred the case to a specialist.
Second, the fact that he was an impressive witness — the judge found that he was an outstanding student of ultrasound — did not help. His competence could not be used to mount an argument that as he did not see an abnormality no reasonable ultrasonographer would have done so. That argument was ‘circular and of no weight.’
Indeed, in the case of Lillywhite, the Court of Appeal felt able to find that a distinguished professor of fetal medicine must have been negligent in reading a brain as normal, even though the same patient was separately scanned as normal by two other senior scanners, one of them the editor of a multi-volume textbook on the subject who saw her as a private patient a few days before. The court felt able to reach this surprising conclusion about a tertiary referral scan, one that was carried out deliberately and cautiously because an ultrasonographer had failed to visualise a normal brain, because the doctors under fire described having seen something that was not there. The baby suffered from holoprosencephaly, which is characterised by an absence of the midline structures, such as the cavum septum pellucidum, corpus callosum and falx. The distinguished doctors both described seeing what they thought was a normal cavum septum. Nobody could tell what the doctors had seen that had misled them, because the scans taken in 1991 were not available, although meticulous notes made at the time described the precise measurements of the cerebral structures visualised.
Cases of scanning are, of course, at the opposite extreme from dystocia from the point of view of the witness of fact. It is common ground that C’s was an uneventful scan, and there was no reason for it to be memorable. Indeed, the first disputed question the judge had to determine was whether the man who signed the report, who put his name to the Co-Operation Card, and was listed by the hospital system as doing the scan, had actually done it. The parents were convinced, 14 years after the event, that it had been a woman.
In fact, the defence succeeded because the judge could not be satisfied that the abnormality existed and would have been visible at 20 weeks. There was a great deal of learned argument about whether the condition was caused by agenesis or a vascular event, and how it tied in with neuronal migration and consolidation, most of which demonstrated the limits of scientific understanding of these issues.
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