Jones v North West Strategic Health Authority [2010] EWHC 178 (QB)

Case No HQ08X02002

[2010] EWHC 178 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Manchester Civil Justice Centre

1 Bridge Street West

Venue Manchester

M60 9DJ

Date 05/02/2010

Before

THE HON. MR JUSTICE NICOL

Between

Jack JonesClaimant

North West Strategic Health AuthorityDefendant

Adrian Whitfield QC and Michael Mylonas (instructed by The Roland Partnership, Saltney, Chester) for Claimant

Stephen Miller QC (instructed by Hempsons) for Defendant

Hearing Hearing dates: 25 th– 29 th January 2010

Judgment

Mr Justice Nicol :

[1]Jack Jones suffers from cerebral palsy and severe developmental disabilities. These were due to his brain being starved of oxygen in the course of his birth 17 ½ years ago on 21st July 1992. After his mother gave birth to his head, his shoulders did not swiftly follow, as would be usual. Instead, his anterior shoulder (the one facing forwards) was lodged behind his mother’s symphysis pubis or pubic bone. This condition, known as shoulder dystocia, is an obstetric emergency. It can lead to the baby’s cord being compressed and a consequent loss of oxygen. The parties’ neonatal and paediatric experts agree that a baby can tolerate such asphyxia for a period of about 7-8 minutes without permanent damage, but after 9-10 minutes some brain damage is likely to be sustained and this is likely to increase as further time goes by. In Jack’s case, the remainder of his body was not delivered until 15 minutes after his head had appeared.

[2]In accordance with the direction of Master Yoxall, I have heard the trial of a preliminary issue namely, whether or not the Defendant is liable to the Claimant by reason of the matters alleged in the Particulars of Claim and, if so, whether or not any of the injuries pleaded were caused thereby; if any injuries were so caused, the extent of the same.

[3]In broad terms, the Claimant’s case can be divided into two parts: i) It is alleged that the Claimant’s mother should have been advised, as part of her antenatal care, of the risk of shoulder dystocia and told of the possibility of having a caesarean section instead of giving birth to her baby vaginally. If she had been warned of that risk, it is said, she would have opted for a Caesarean and Jack would have been born in that manner without difficulty. ii) After Jack’s head appeared and it was apparent that this was likely to be a case of shoulder dystocia, the attending doctors took too long to achieve the birth of the remainder of Jack’s body. If they had not been negligent, his birth would have been completed sufficiently quickly for him to avoid any permanent damage. Alternatively, absent negligence, he would have been born quicker than he was so that the degree of impairment which he suffered would have been less than was actually the case.

[4]Mrs Jones had had two previous children: Anna was born on 30th August 1984; Rebecca on 28th November 1985. A third pregnancy in 1987 led to a miscarriage, but this had no significance for any of the issues which I have to decide. Anna weighed 3.92 kilos when she was born. Rebecca weighed 4.2 kilos. For both babies, Mrs Jones had received antenatal care from Midwife Hughby. Both babies had been born at the Hope Hospital in Salford. There seems to have been nothing unusual about the birth of Anna. In Rebecca’s case, the hospital’s obstetric records show that there was a slight shoulder dystocia which the midwife (Midwife Newell) was able to resolve by placing Mrs Jones on her left side.

[5]Midwife Hughby was again responsible for Mrs Jones’ antenatal care when she was pregnant with Jack. Mrs Jones was seen first at 16 weeks. Midwife Hughby noted the weights of the two previous babies and that each pregnancy had been normal and that the child was healthy. There was no reference to the shoulder dystocia in the course of Rebecca’s birth and so it is to be assumed that Mrs Jones did not mention it to her. Mrs Jones is 5 feet tall. Her weight on this first appointment was 99 kilos. Urine specimens were taken at this meeting and at 20, 24, 32, 35, 37 and 39 weeks, but nothing abnormal was detected on any of these occasions. For each visit the midwife recorded her impression of the fundus’ size by comparison with the number of weeks that the pregnancy had continued. There was no evidence as to how the midwife had estimated the size of the fundus – whether it was just impression or whether there had been any attempt at more precise measurement. In any event, the discrepancies, such as they were, were not very large (36+ by dates, 37 by fundus size; 37+ by dates, 38 by fundus size; 38+ by dates, 39 by fundus size; 39+ by dates, 40 by fundus size).

[6]As with her two daughters, Mrs Jones was due to give birth at the GP unit of the Hope Hospital. This is one floor below the unit which is called ‘the consultant unit’ and which is also known as the Main (or Central) Delivery Unit. In both units, women are primarily under the care of midwives, but doctors (whether a consultant or more junior grade) are more readily on hand in the consultant unit.

[7]Her expected dated of confinement was 20th July 1992. On 21st July 1992, Mrs Jones had a show at about 5.30am. She also started to have contractions. She and her husband were taken to the Hope Hospital by ambulance and admitted to the GP unit at 9.0am. Standard tests were conducted by the midwives. At 9.30am it was recorded ‘Feels big baby. Hard to palpate.’ Nothing further of note occurred until about 16.00 when it was observed that the cervix was 8 cm dilated. Her membranes were bulging and they were ruptured with an amnio hook. Her waters were stained with meconium (faecal material voided by the fetus into the amniotic fluid). As a result she was transferred from the GP unit to the Main Delivery Unit where she arrived at 16.30. She was placed under the care of Midwife Shepherd who had qualified as a midwife in February 1990 and so had about 2½ years experience by July 1992.

[8]Midwife Shepherd listened to the fetal heart and took Mrs Jones’ pulse. Because of Mrs Jones’ size she could not obtain a trace for the fetal heart with a CTG. Instead she conducted a vaginal examination and placed a scalp electrode on the fetal skull by about 16.45.

[9]At 17.23 Midwife Shepherd became concerned that the cord was presenting with the vertex (top of the baby’s head). She thought that that this might mean that the cord had prolapsed. She sent a student nurse who was in the room to ask Sister Taylor, the senior midwife on duty, to come and observe and give advice. As it happened, at this time the consultant on duty, Dr Railton, and the Senior Registrar, Dr Polson, were conducting their ward rounds. They came into the delivery room as well as Sister Taylor and Sister McCormack.

[10]Dr Polson had been working in obstetrics and gynaecology for 12 years in 1992. He had been a Senior Registrar for 18 months and became a consultant 1 year after the birth of Jack. He is still a consultant in obstetrics and gynaecology now, having become a Fellow of the Royal College of Obstetrics and Gynaecology in 2004. Dr Railton had been a consultant in Obstetrics and Gynaecology at the Hope Hospital since August 1989. She still holds that position now. She has been a Fellow of the Royal College since 1995.

[11]When he came into the room, Dr Polson conducted a vaginal examination of Mrs Jones. He decided that what Midwife Shepherd had thought was the cord in fact was a swollen lip of the cervix (oedematous cervix), which he pushed away.

[12]Midwife Shepherd delivered the head with the next contraction at 17.27. Almost immediately there were two signs of potential trouble. There were thick folds on the neck. Second, the neck slightly retracted back into the vagina after it had been delivered. This phenomenon is called ‘turtling’. It indicates that there is, or may be, shoulder dystocia. It was because of this possibility that Dr Railton and Dr Polson stayed in the delivery room.

[13]What happened between the birth of Jack’s head, and the delivery of the rest of his body at 17.42 is not entirely clear. A great deal was going on and, unsurprisingly, no one made an exactly contemporaneous note. It is convenient if I set out the different accounts (expanding agreed abbreviations where relevant) before making my findings as to what (on the balance of probabilities) is likely to have been the sequence.

[14]Midwife Shepherd’s notes were made as soon as Jack was taken from the labour ward to the special care baby unit (SCBU). For the material period they read as follows:

“1727 Fetal Heart Sounds 80 Maternal pulse 98 Head delivered oral and nasal suction given re meconium liquor 1730 Pushing c/o contractions, unable to deliver body. 1735 Paediatricians, Dr Onochie, Dr Hebbett. Dr. Railton, Dr. Polson on hand. Still unable to deliver body. Episiotomy performed by Dr. Polson, legs flexed Joanne pushing well but ineffective in delivery of shoulders. Dr. Railton, Dr. Polson on hand. Still unable to deliver body. Episiotomy performed by Dr. Polson, legs flexed Joanne pushing well but ineffective in delivery of shoulders. 1740 Venflon inserted 500 ml 5% glucose IV with 10 units Syntocinon. Left lateral position performed. 1742 Posterior shoulder rotated 180 degrees by Dr Polson. Normal delivery live male in very poor condition. Syntometrin given intra-muscularly with birth of baby. 1748 Placenta + membranes delivered via controlled cord traction.”

[15]Dr. Railton wrote her note after she left the delivery room. It reads:

“17.25 present for delivery Midwife believed cord had come down but it was in fact oedematous anterior lip of cervix. This was pushed away by Dr D. Polson and head delivered within 3-4 minutes (17.25) in Occipito Anterior position [this means that the back of the baby’s head pointed forwards]. Extreme difficulty delivering shoulders after restitution to Right Occipital Transverse [i.e. that the back of the baby’s head pointed to the mother’s right side]. Episiotomy, flexing legs on chest, Left lateral position ineffective. Eventually delivery effected by grasping posterior shoulder and rotating through 180 degrees. Infant delivered in very poor condition at 17.42.”

[16]Neither Dr Polson nor, so far as I am aware, any of the other staff in the delivery room, made any notes of what had taken place.

[17]The evidence of Midwife Shepherd, Dr Polson and Dr Railton agreed that the sequence of events was rather different to either of these accounts. They said that what happened was this: i) The head was born at 17.27 as Midwife Shepherd recorded. In their evidence, Dr Polson and Midwife Shepherd agreed that Jack’s head was big. ii) Thereafter contractions came at approximately 3 minute intervals. This would mean that the contraction itself lasted for about 1 minute and there was a quiescent period of 2 minutes in between contractions. iii) When the turtling of the head was observed, Mrs Jones was turned on to her left side by Midwife Shepherd. I will refer to this manoeuvre as the ‘left lateral’. iv) When the left lateral did not achieve the birth of the baby’s body, Dr Polson swung Mrs Jones around 90 degrees so that she was then lying across the bed with her buttocks over the edge. Each of Mrs Jones’ legs was grasped by a midwife who flexed the leg slightly and held it parallel to the floor. This is known as the lithotomy position. v) Dr Polson re-gloved and cut an episiotomy (which involves cutting the mother’s perineum). vi) At Dr Polson’s request, one of the midwives set up an infusion of (among other things) syntocinon. vii) The next contraction came. A third midwife applied supra-pubic pressure. This was intended to shift or rotate the anterior shoulder which was lodged. At the same time Dr Polson applied traction to the baby’s head. However, these measures did not achieve the birth of the body. viii) Dr Polson then instructed the two midwives who were holding Mrs Jones’ legs to flex them back as far as possible towards her chest which also involved abducting them slightly. This is now known as the ‘McRoberts position’ although the term was not in general use in 1992. ix) The McRoberts position, coupled with further supra-pubic pressure and traction on the baby’s head by Dr Polson, did not achieve birth of the baby’s body. x) Dr Polson then attempted to insert his hand into Mrs Jones’ vagina. He attempted to grasp the baby’s posterior arm and to swing it round and deliver that. He found that his hands were too large to do this. He was also unable to succeed in his next attempt which was to break the baby’s clavicle with his fingers so as to reduce the breadth of the shoulders. xi) Finally, Dr Railton inserted her fingers in front of the baby’s posterior shoulder. Dr Polson inserted his fingers behind the baby’s anterior shoulder. Between them they managed to rotate the baby’s body 180 degrees. This had a corkscrew effect and allowed the shoulders to be delivered. xii) Jack’s body was finally delivered at 17.42. He weighed 5.3 kilos.

[18]In her evidence Mrs Jones said that she remained lying on her back lengthwise on the bed. She was not rolled on to her left side. She was not rolled so that she was across the bed. She did recall the midwives taking hold of her legs and another pressing down on her tummy, but not the detail of the other manoeuvres. Mr Jones broadly supported his wife’s account.

[19]I find that the sequence of events was as the medical staff described in their evidence and as I have summarised in paragraph [17] above. I explain my reasons for resolving the principal discrepancies as follows: i) Dr Railton’s notes say that the head was delivered at 17.25, but Midwife Shepherd’s gives the time as 17.27. It is good midwifery practice to note the precise time of certain events (including delivery of the head). Dr Railton’s note was a reconstruction after the event. In this respect, she considered that Midwife Shepherd’s note was likely to be the more accurate and I agree. It is also consistent with the record of the baby’s fetal heart rate on the CTG which came to an end just after 17.26, presumably when the baby’s head (to which the electrode had been attached) was born. ii) I think that Mrs Jones is mistaken about not being put on to her left side after the head was delivered and turtling was observed. The left lateral manoeuvre is the first procedure recommended for shoulder dystocia by the principal text book on Midwifery, Myles on Midwives. The 11th edition, edited by Bennett and Brown, was the one current in 1992. This was the procedure which had been adopted by Midwife Newell at the same hospital when slight shoulder dystocia had been experienced in the course of the birth of Rebecca. Both midwife Shepherd’s notes and Dr. Railton’s notes say that the left lateral position was performed. I find that it was. iii) I find that the left lateral position was the first manoeuvre to be tried. It is true that both sets of notes, made shortly after Jack was born, say this took place later in the sequence of events and after Mrs Jones’s legs had been flexed. However, as Dr Railton said in her evidence, the sequence recorded in the notes would have been bizarre. She would have remembered if that was what had happened and it did not. I accept her evidence. Midwife Shepherd (who was the one who performed the left lateral manoeuvre) and Dr Polson agreed that this was the first attempt to deliver the body after shoulder dystocia was suspected. Although it is unusual to prefer a later recollection (particularly one which is so much later) to near contemporaneous notes, I do find that in this case the notes are mistaken. iv) The timing of the episiotomy is a little less clear. Both sets of notes place it before the manoeuvre where Mrs Jones’ legs were flexed (which seems to be a reference to the McRoberts’ position, although there is slight flexing in the lithotomy). Midwife Shepherd’s notes suggest that the episiotomy was cut after Dr Polson had been unable to deliver the body. Her notes said this happened at 17.35. The timings are unreliable. Midwives take particular care to note the important events (crowning, delivery of the head, delivery of the body and delivery of the placenta), but it is standard practice to give other events at somewhat arbitrary 5 minute intervals. When these are being noted after the event, rather than contemporaneously, I accept that they may not always be accurate or noted in the correct order. In her oral evidence, Midwife Shepherd said that it would be her standard practice to cut an episiotomy if the left lateral position had been unsuccessful. She would normally first deliver a local anaesthetic. However, in this case, Dr Polson intervened before she could do that. It was he who cut the episiotomy and because of the urgency of the situation, he did so without an anaesthetic. While I cannot be sure, I think it more likely than not that this was the order of events. v) The interval between contractions was about 3 minutes. There is no direct evidence of this, but the medical staff (and the two expert witnesses) agreed that this was a reasonable inference from the fact that there were 15 minutes between the birth of Jack’s head and the delivery of his body and during that period 5 manoeuvres (left lateral, lithotomy, McRoberts, Dr Polson’s attempt at internal manipulation, the joint attempt at internal manipulation) were performed, each of which would normally require (or be separated by) a contraction. Although contractions will not come at precisely regular intervals, I agree that this is a reasonable inference to draw. This is not a case where it is alleged that the medical professionals were standing around doing nothing at any time during that critical 15 minutes.

The law

[20]In most situations the issue as to whether a doctor or other medical professional has been negligent is determined by applying the test in Bolam v Friern Hospital Management Committee

[1957] 1 WLR 583

. In directing the jury in that case, McNair J. said at p. 587 “I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art…Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that would take a contrary view.”

[21]Material to the present case, there are two situations where this test has to be qualified or expanded upon. In Bolitho v City and Hackney Health Authority

[1998] AC 232

the House of Lords emphasised that McNair J. had said that the practice in question had to be accepted as proper by a responsible body of medical men. Elsewhere in his judgment he had said that it must be regarded as acceptable by a reasonable body of opinion. Lord Browne-Wilkinson, who gave the leading speech in Bolitho, commented at p.241 “The use of these adjectives – responsible, reasonable and respectable – all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of the comparative risks and benefits and have reached a defensible conclusion on the matter.” He added at p.243 “In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible. I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such an assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the bench mark by reference to which the defendant’s conduct falls to be assessed.”

[22]The second qualification to the Bolam test concerns a doctor’s duty to apprise a patient of significant risks of one course rather than another in relation to treatment. This derives from the decision of the Court of Appeal in Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P53 CA which concerned the adequacy of advice given to a mother who shortly afterwards gave birth to a stillborn baby. When Mrs Pearce was 14 days overdue she had been to see her consultant, crying and begging to be induced or to have a caesarean section. The consultant explained the risk associated with an induced birth and also discussed a caesarean. At the trial, the expert evidence was overwhelming that induction would have been dangerous. That alternative fell out of the picture. But the issue remained as to whether the consultant had adequately advised of the risks of a caesarean as against continuing with the pregnancy and giving birth naturally. Counsel emphasised that this situation was the reverse of the usual case where complaint is made of inadequate advice prior to an operation. In those more common situations, medical intervention would be an assault unless the patient gave consent. The consent must be informed in the sense that the patient must be informed of significant risks. In Pearce, however, the Claimant was arguing that she should have been informed of the risks of doing nothing (or letting nature take its course) as opposed to what was said to be the less risky option of a caesarean. However, this was not a distinction which impressed the Court of Appeal. In his leading judgment, Lord Woolf MR said at p. 59, “In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt. In [Sidaway v Governor of the Bethlem Royal Hospital

[1985] 1 AC 871

] Lord Bridge recognises that position. He refers to a ‘significant risk’ as being a risk of something in the region of 10 per cent. When one refers to a ‘significant risk’ it is not possible to talk in precise percentages, but I note, and it may be purely coincidental, that one of the expert doctors who gave evidence before the judge gave the following answer in evidence. I refer to the evidence of Mr Pearson:

‘A. If she hadn’t asked I wouldn’t have mentioned the subject as she was already distressed and the risk [i.e. of the baby being stillborn if a Caesarean was not conducted immediately] is excessively small. I generally practice according to the belief that it is not the doctor’s duty to warn of very small risks. If the risk, however, was of the order of 10%, for instance, then of course it would be my duty to warn against such a level of risk.’

Obviously the doctor, in determining what to tell a patient, has to take into account all the relevant considerations, which include the ability of the patient to comprehend what he has to say to him or her and the state of the patient at the particular time, both from the physical point of view and an emotional point of view. There can often be situations where a course different from the normal has to be employed. However, where there is what can realistically be called a ‘significant risk’, then, in the ordinary event, as I have already indicated, the patient is entitled to be informed of that risk. Turning to the facts of this case, the next question is, therefore, ‘Was there a significant risk? To what extent was the risk of Jacqueline being a stillborn child increased by the delay?’ Miss Edwards, on behalf of the respondent, has referred us to the relevant passages in the transcript. They show that, on any basis, the increased risk of the still birth of Jacqueline, as a result of additional delay, was very small indeed. The statistical material which was available can be broken down in to different classes. Even looked at comprehensively it comes to something like 0.1 to 0.2 per cent. The doctors called on behalf of the defendants did not regard that risk as significant, nor do I. Indeed, it is right to point out that the operative treatment involved in a caesarean section would inevitably have had some risk. …. This is case where, in my judgment, it would not be proper for the courts to interfere with the clinical opinion of the expert medical man responsible for treating Mrs Pearce.” ‘A. If she hadn’t asked I wouldn’t have mentioned the subject as she was already distressed and the risk [i.e. of the baby being stillborn if a Caesarean was not conducted immediately] is excessively small. I generally practice according to the belief that it is not the doctor’s duty to warn of very small risks. If the risk, however, was of the order of 10%, for instance, then of course it would be my duty to warn against such a level of risk.’

[23]In Chester v Afshar

[2004] AC 134

at [15] Lord Steyn quoted and approved the first paragraph from the extract of Lord Woolf’s judgment which I have set out above.

[24]Pearce itself rejected the argument that the doctor was relieved of a duty to warn of the risks of allowing nature to take its course as opposed to the risks of positive intervention by a doctor. At least where there was a viable medical alternative to the natural route, the patient was entitled to be told of any significant risk that attached to either course. The role of expert evidence is different in this context. It is not to identify whether or not there is a body of responsible or reasonable medical opinion in accordance with which the doctor in question acted. That sets the bar too high in determining whether the risk was a matter which should have been disclosed. On the other hand, Lord Woolf did not regard the medical evidence as irrelevant in deciding whether the risk was significant. It can obviously assist in explaining what the outcome of one course or another might be. It may or may not be able to quantify the risk of that outcome. Whether or not a risk is ‘significant’ is ultimately for the Court to decide.

[25]If a doctor or medical professional has been negligent, that is not sufficient for the Claimant to succeed: the negligence must have been causative of the Claimant’s loss. In this case, it is said that Midwife Hughby should have referred Mrs Jones to a consultant for advice because of various factors. If I were to accept that there had been negligence in that regard, the next question would be, ‘What advice would the doctor have given if there had been such a referral?’ There is then a second question. Bolitho confirms that this hypothetical scenario must also be measured against the reasonable standards prevailing in the profession, or, where this is material, the significant risks about which the patient should have been advised.

[26]If I were to decide that a significant risk had not been disclosed to Mrs Jones, a further question would need to be addressed, namely, “What would have happened if proper advice had been given?” Here the evidence of the professionals may assist in indicating the behaviour of patients generally and their response to medical advice.

[27]In this context, as elsewhere in this judgment, I must always bear in mind that the events in question took place almost 18 years ago. Medical research into shoulder dystocia has moved on since then as has (to some extent at least) the accepted procedures for responding to it. Mr Whitfield QC who appeared with Mr Mylonas for the Claimant, however, was entitled to observe that the Pearce case related to a pregnancy and stillbirth in 1991. The Court of Appeal’s comments about the duty to disclose significant risks do not, therefore, represent a subsequent enhancement of patient rights. Rather, they express the law which is also applicable to the present case. In December 2005 the Royal College of Obstetricians and Gynaecologists (‘RCOG’) produced guidelines for dealing with shoulder dystocia. Because these, to some extent at least, draw on subsequent research and experience, they cannot be applied straightforwardly as a benchmark against which the performance of the medical professionals in the present case can be measured. However, I accept the proposition of Mr Miller QC who appeared for the Defendant, that the standards of safety and care are not likely to have declined in the last 18 years and so it will be difficult to characterise the actions and omissions of the professionals in this case as sub-standard to the extent that they accorded with the present guidelines.

Alleged negligence in antenatal care

[28]On behalf of the Claimant it was said that Mrs Jones should have been referred by Midwife Hughby to a consultant at about 36 weeks because either singly or in combination there were a number of factors that suggested a risk of shoulder dystocia in her present pregnancy. These factors were: the previous incidence of shoulder dystocia in the course of Rebecca’s birth; Mrs Jones weight at the commencement of her pregnancy (99 kilos); the weight that she gained in the course of the pregnancy (7 kilos); her high parity (meaning the number of previous babies which she had had); the size of her previous babies. An assessment by a consultant at about this time would also have led to an appreciation that the baby which Mrs Jones was particularly large and that, too, is a risk factor for shoulder dystocia. In addition, Mrs Jones should have been given a glucose tolerance test for gestational diabetes which can be a further sign of possible shoulder dystocia.

[29]If there had been a consultation with a doctor, Mrs Jones should have been warned of the possibility of a recurrence of shoulder dystocia if she gave birth vaginally, that it might well be worse than in Rebecca’s case, and she should have been offered the alternative of a caesarean section.

[30]In advancing this (and the whole of his case) the Claimant relied on the expert evidence of Mr Julian Woolfson. He has been a Consultant Gynaecologist and Obstetrician since 1985. He retired from the NHS in 2007 although he continues in private practice. He is a Fellow of the RCOG. He has published papers of his own and has been on the editorial board of the RCOG’s journals and also at one stage was responsible for their continuous professional development programme. He has appeared as an expert witness in a large number of obstetric cases, both for defendants and claimants.

[31]The defendant accepted that in some way Midwife Hughby ought to have had access to the records which showed that there had been slight shoulder dystocia at the time of Rebecca’s birth. This should have been available at an early stage of Mrs Jones’ antenatal care. If it had been, it ought to have led to a reference to a consultant at about 20 weeks.

[32]The Defendant relied on the evidence of Mr Derek Tuffnell. He has been a consultant in Obstetrics and Gynaecology since 1994. He is currently the Deputy Medical Director of Bradford Hospitals, a post he has held since 2007. He is also a Fellow of the RCOG. He has helped develop guidelines for the National Institute in Clinical Excellence (NICE). He has organised courses for the RCOG including a course on shoulder dystocia. He has been a regional panel chair for the Confidential Enquiry into Still Births and Deaths in Infancy (CESDI). He, too, has provided medico-legal reports for both defendants and claimants.

[33]If there had been such a consultation, Dr Railton says she would not have organised a glucose tolerance test for diabetes. This was not routine. It would only be done if there had been two episodes of glycosuria (sugar in the urine) and in Mrs Jones’ case, there were none. Dr Railton would not have scanned for fetal size. Scanning is not very reliable now and was even less reliable in 1992. Dr Railton says that she would have taken account of Mrs Jones’ previous history of being able to deliver normally two good sized babies. In the second there had been only mild shoulder dystocia which had been managed simply by turning Mrs Jones on to her left side. Unless the midwife had expressed concern about Mrs Jones’ ability to deliver vaginally, Dr Railton would not have mentioned elective caesarean section as an alternative.

[34]If the midwife had voiced such a concern, then Dr Railton says that she would have discussed the possibility of a caesarean with Mrs Jones. She would have said that as she had encountered some slight difficulty delivering the shoulders during Rebecca’s birth, there was a possibility that this might happen again, but even with her history, the risk was low. Dr Railton would have put the risk of a repetition of shoulder dystocia at 10% or lower.

[35]Dr Railton would have told Mrs Jones that she would need to balance that low risk against the higher risks associated with caesarean section and that those risks were increased in a patient, such as she, who was overweight. In her witness statement, Dr Railton said that the risks connected with a caesarean which she had in mind were Deep Vein Thrombosis (DVT), anaesthetic problems and post operative infection. In her oral evidence she added that a caesarean would drastically increase the chance of Mrs Jones bleeding. There was a possibility that this baby might be larger than the previous two and the technical risks of a caesarean increased with a large baby. Dr Railton explained that with an obese mother a spinal anaesthetic might be difficult which meant that a caesarean would have to be done under a general anaesthetic with its increased risks. DVT was a higher risk with an obese mother because there was likely to be reduced post-operative mobility. Pulmonary embolism caused by DVT can be fatal. Infection risks were also greater after an operation on an overweight woman. Overall Dr Railton would have recommended that Mrs Jones have a vaginal delivery. She would, however, have arranged for her to be booked into the Consultant or main delivery unit rather than the GP unit.

[36]Mr Tuffnell did not think that it would have been normal to perform a glucose tolerance test simply because Mrs Jones’ most recent baby had been 4.2 kilos. He thought that ultra sound scanning was too unreliable to be a worthwhile indicator of this baby’s weight. He also agreed with the advice that Dr Railton says she would have given, namely that Mrs Jones should proceed with a vaginal birth.

[37]At this point it is appropriate to consider the risk factors which Mr Woolfson identified as possibly indicating that Jack would experience shoulder dystocia. It is important to emphasise that these are only risk factors and not predictors. Even today the view of the RCOG is that “risk assessments for the prediction of shoulder dystocia are insufficiently predictive to allow prevention of the large majority of cases” and “shoulder dystocia is, therefore, a largely unpredictable and unpreventable event.”

[38]Shoulder dystocia in previous pregnancy: R.B. Smith and J.F Pearson’s paper Shoulder Dystocia: What Happens at the Next Delivery published in volume 101 of the British Journal of Obstetrics and Gynaecology concluded, “The recurrence rate [of shoulder dystocia] of 9.8% in the next pregnancy was 17 times the background rate amongst all deliveries, thus confirming that previous shoulder dystocia is a risk factor.” However, this paper was not published until 1994 – some 2 years after Jack was born. Nonetheless, Mr Tuffnell accepted that in 1992 there was a general view that shoulder dystocia in a previous pregnancy was a risk factor. That accords with the view of Dr Railton, whom, it will be recalled, said that if she had had an antenatal meeting with Mrs Jones, she would have told her that the chance of Jack experiencing shoulder dystocia was 10% or less in view of the problem that Rebecca had had.

[39]Maternal obesity: At the start of her pregnancy with Jack, Mrs Jones weighed 99 kilos and was 5 feet high. This meant that she had a Body Mass Index (BMI) of 42.6. In turn this meant that she very considerably exceeded the clinical threshold for obesity which is a BMI of 30. According to the RCOG’s 2005 Guideline a maternal BMI exceeding 30 is one of the factors associated with shoulder dystocia. No literature or research was produced which showed that this association had been found by 1992. Mr Woolfson’s evidence was that the link with shoulder dystocia came about because of two reasons. First larger mothers tended to be more likely to have gestational diabetes and this was a recognised risk factor for shoulder dystocia even in 1992. Second, larger mothers tended to produce larger babies and these, too, were more likely to suffer shoulder dystocia. Consequently, I shall look at these factors next.

[40]Diabetes: I accept that the research did show, even by 1992, that the risk of a diabetic mother experiencing shoulder dystocia was higher than for a non-diabetic mother (see for instance, Acker and others, Risk Factors for Shoulder Dystocia (1985) Vol.66 Obstetrics and Gynaecology 762). In his report Mr Woolfson had said that the failure to do a GTT in Mrs Jones’ case was substandard care. However, Mr Tuffnell said that the GTT was a diagnostic test. In 1992 it was a common and reasonable approach not to carry out such a test unless a screening measure (such as the tests for glycosuria) was first positive. That was not the case with Mrs Jones. In his cross examination, Mr Woolfson accepted that carrying out a GTT, even in the absence of a screening indication, was his own preference and practice. He agreed that he was wrong to characterise the failure of another doctor to carry out such a test as substandard care. In any event, as Mr Whitfield accepted, there was no evidence that if Mrs Jones had had a GTT it would have shown her to be diabetic.

[41]Baby size: The experts agreed that the average size of a baby in 1992 was about 3.5 kilos. A baby is known as macrosomic (in the UK at least) if it is over 4.5 kilos. There was some evidence by 1992 that large babies were more likely to experience shoulder dystocia. In the study by Acker and others (see above) it was found that 10% of the babies of non-diabetic mothers which weighed between 4.000 and 4.499 kilos had shoulder dystocia. If the baby was macrosomic, the incidence was 22.6%. A study by Gross and others which was published in 1987 in the American Journal of Obstetrics and Gynaecology found that 8.6% of the babies weighing between 4.000 and 4.499 kilos had shoulder dystocia while 35.7% of the babies over 4.5 kilos. This latter study, did not look at whether the mothers were or were not diabetic. As the Defendant emphasised, however, these were all studies that looked at the weight of the baby in question. That could only be determined with certainty after the birth had taken place.

[42]Jack was 5.3 kilos when he was born and so undoubtedly constituted a macrosomic baby. The Claimant argued that there were three factors in particular which should have alerted his antenatal carers to the possibility that he would indeed be very large. I have already referred to the first: his mother’s obesity. The second was the fact that his two sisters had been large babies: Anna had been 3.92 kilos and Rebecca 4.2 kilos. These were themselves big babies and, it was submitted, a mother’s babies tend to get progressively larger. Thirdly, towards the end of the pregnancy (say by about 36 weeks), a baby will be about 1 – 1.5 kilos short of its birth weight. In Jack’s case, therefore, he would at stage have been about 3.9 kilos. This should have been detected and triggered concern that he was likely to be a very large baby.

[43]Mr Tuffnell took issue with each of these indicators. He agreed that an obese mother was more likely to have a bigger baby than her normal weight neighbour, but this did not mean that the baby of an obese mother was likely to be macrosomic. Mr Tuffnell did not regard either Anna or Rebecca as big babies. In his experience, babies of their weight were very common. He agreed that a second baby tended to be larger than the first (as had been the case with Mrs Jones), but it was not the case that a third baby tended to be larger still. The trend was for them to be about the same size as the second (so, in this sense, Jack was a departure from that norm). The antenatal measurements which had been taken by Midwife Hughby showed that the fundus was slightly bigger than would be expected by her dates, but estimating its size would be particularly difficult because of the mother’s weight.

[44]Mr Tuffnell disagreed with Mr Woolfson that an ultrasound ought to have been carried out at 36 weeks to try and assess the baby’s weight. He said that a scan could only give a very imprecise idea of the baby’s weight. Attempts would be made to measure various parts of the fetus’s body and extrapolate its weight from these; but both the measurements and the resulting calculation were likely to be unreliable. Ultrasound scans were more useful in detecting babies that were significantly underweight, or in showing unusual indicators of the baby not being well, such as the degree of blood flow through the cord. None of these were relevant in the present case. Overall, Mr Tuffnell said that, while some obstetricians would do an ultrasound scan at 36 weeks, this was certainly not universal and not even common. Mr Miller noted that even in 2005 the RCOG commented, “There is a relationship between fetal size and shoulder dystocia but it is not a good predictor. The large majority of infants with a birth weight of equal to or less than 4500 g do not develop shoulder dystocia and, equally importantly, 48% of incidences of shoulder dystocia occur in infants with a birth weight of less than 4000g. Moreover, clinical fetal weight estimation is unreliable and third trimester ultrasound scans have at least a 10% margin for error for actual birth weight and a sensitivity of just 60% for macrosomia (over 4.5 kilos).”

[45]Parity and maternal weight gain during pregnancy Although Mr Woolfson had identified both of these in his report as relevant risk factors in Mrs Jones’ case, he resiled from both in the course of his oral evidence. He accepted that high parity only occurs when a woman has previously given birth three or more times. That was not the case with Mrs Jones before she gave birth to Jack. The average weight gain in pregnancy is 10-12 kilos. An excessive weight gain would be 15 -20 kilos. In this case Mrs Jones put on 7 kilos. This was less than average. Mr Woolfson therefore accepted that excessive weight gain was not an issue in her case.

[46]I conclude that there was no negligence in failing to conduct an ultra sound scan of Mrs Jones at 36 weeks. Mr Woolfson did not produce any literature or research to support his view that this should have been done. The closest he could come was a remark in the Acker paper which said, “The difficulties of accurately estimating fetal weight are not discounted; however, they are also not insurmountable using current ultrasound techniques. The suspicion of a large fetus should prompt as accurate an estimation of fetal weight as each practitioner and institution can achieve.” The last sentence is somewhat Delphic. Mr Tuffnell’s evidence was that it would not be usual to do an ultrasound in circumstances such as Mrs Jones’ case in 1992. When pressed in cross examination, Mr Woolfson seemed to agree that whether or not to do an ultra scan was an individual clinical decision. I conclude that there was a body of responsible medical opinion which would not have done a scan in Mrs Jones’ case and, for the reasons given by Mr Tuffnell it had a reasonable and logical basis.

[47]While this leads me to reject the Claimant’s case that the antenatal care was sub-standard at 36 weeks, I am left with the constellation of factors which the Defendant’s expert agrees should have led to a meeting with a consultant at an earlier stage in the pregnancy. These factors – principally the previous shoulder dystocia in Rebecca’s case, but perhaps also (to some extent at least) the size of the previous two babies and maternal obesity would have been present or should have been identified from the beginning of the pregnancy. In Mr Tuffnell’s view, any such meeting with the consultant ought therefore to have taken place around about 20 weeks into the pregnancy.

[48]Dr Railton would have been that consultant. It will be recalled that she said that what she would have told Mrs Jones would have depended on whether the midwife had expressed concerns about the method of delivery to Mrs Jones. In itself, I see nothing wrong in that approach. The fact that another medical professional had already expressed concern to the patient was obviously a material factor for Dr Railton to take on board. But that still leaves the question as to whether Dr Railton ought to have recognised that vaginal birth carried a significant risk to which Mrs Jones should have been alerted and which should therefore have led to Dr Railton raising with her the alternative of an elective Caesarean section.

[49]Mr Miller submitted that there was not a significant risk here. He drew attention to the following: i) Even today, the RCOG comments that while certain factors (previous shoulder dystocia, macrosomia, diabetes mellitus, large maternal body mass index and induction of labour) were associated with shoulder dystocia they “have a low positive predictive value both singly and in combination. Conventional risk factors predicted only 16% of shoulder dystocia that resulted in infant morbidity. The large majority of cases occur in children of women with no risk factors. Shoulder dystocia is, therefore, a largely unpredictable and unpreventable event.” ii) Even today the RCOG does not recommend elective caesarean section to reduce the potential morbidity for pregnancies complicated by suspected fetal macrosomia without maternal diabetes mellitus. iii) The current RCOG guidelines do not recommend routine caesarean section where there has been shoulder dystocia in the past, although the decision as to method of delivery should be made by the woman and her carers. iv) It is important to recognise that the incidence of shoulder dystocia is not the same as consequent infant morbidity (i.e. harm to the child). Many babies who experience shoulder dystocia are delivered unharmed. This was so with Rebecca. The experts agreed, for instance, that the McRoberts manoeuvre combined with supra-pubic pressure resolves 80-90% of all cases. I presume that there are, in addition, cases where internal manipulation succeeds in delivering a baby without harm. Since Dr Railton understood the risk of shoulder dystocia for Jack to be something less than 10%, this would mean that the risk of harm was less than 1 – 2%. v) In his cross examination, Mr Woolfson said that the majority of his colleagues would not have discussed caesarean section, although he did not think that this set the proper standard. Likewise, Mr Tuffnell considered that on a routine referral of a woman in Mrs Jones’ position by a midwife, it would be a reasonable and common approach not to mention a caesarean section. vi) This was a reasonable position. Vaginal delivery remained the best method of delivery, the safest for Mrs Jones and there was no clinical indication for a change of course.

[50]Despite these arguments I have concluded that there was a significant risk associated with vaginal birth. This means that if, as there ought to have been, a consultation took place between Mrs Jones and Dr Railton at about 20 weeks, Dr Railton would have been obliged to refer to the alternative of a caesarean section. It seems to me that the effect of Pearce is that the issue was not what was the best method of delivery (point (vi) in the previous paragraph) or what would have been a reasonable and common approach (point (v)) but whether vaginal birth entailed a significant risk. I appreciate that the incidence of shoulder dystocia is not the same as the risk of harm to the baby. But there is undoubtedly a risk of harm. As it happens, in this case it took the form of asphyxia leading to brain damage. In more severe cases shoulder dystocia can lead to death. Death can be very sudden. A review in 1996 of 56 cases where shoulder dystocia led to death found that in 47% of the cases the interval between delivery of the head and the body was less than 5 minutes. In 89% of the cases the interval was less than the 15 minutes it took for Jack’s body to be delivered. The other risks involved with shoulder dystocia are the injuries which can be caused to the baby by the manipulations necessary to release the shoulders. These include brachial plexus injury – a form of nerve damage which can lead either temporarily or permanently to a deformity of the hand or arm, a condition known as Erb’s palsy. It is very hard to quantify the risk of any injury, but it would have been reasonable for Dr Railton to work on the basis that it was something less than 1-2%.

[51]Apart from the risk of actual injury to the baby, shoulder dystocia by itself is likely to engender an atmosphere of crisis in the delivery room. Mr Tuffnell acknowledged that shoulder dystocia is probably the most frightening obstetric emergency that medical staff can encounter. Mrs Jones recalled her experience when Rebecca experienced shoulder dystocia as very traumatic, dramatic and scary. The risk of a repetition of that type of experience (even if ultimately the chances were good that the baby would be safely delivered) can, in my judgment, properly be taken into account in deciding whether the risk was significant.

[52]Furthermore, in his oral evidence, Mr Tuffnell did agree that he would have expected this hypothetical consultation between Dr Railton and Mrs Jones to have included a mention of caesarean section even if it was only to put it on one side. He would have expected the consultant to discuss the advantages and disadvantages of vaginal birth as opposed to caesarean even if this was accompanied by quite directive counselling from the doctor. That is consistent with the current RCOG Guidelines where there has been previous shoulder dystocia – caesarean section is not the routine course to be recommended, but the option should be discussed between the mother and her carers.

[53]I conclude, therefore, that Mrs Jones should have been told of the possibility of a risk of shoulder dystocia if she gave birth to Jack vaginally and there should have been some mention of the alternative of caesarean section.

Antenatal care: causation

[54]I then have to decide what Mrs Jones would have done if she had been told of this risk.

[55]Her evidence was that she would have opted for a caesarean. As I have said, she said that she had found Rebecca’s birth to be dramatic and scary and very traumatic. She said that she did want a repeat of that experience. Even if she had been told that a caesarean carried greater risks for her, she would have put the interests of her baby first and still chosen a caesarean section.

[56]The Defendant’s position was that, even if Dr Railton was obliged to mention the risk of shoulder dystocia and the option of caesarean section, she would have accompanied this with an explanation of the risks of the latter (both to Mrs Jones and to the baby) and advice to chose a vaginal birth. In 1992 patients would usually take their doctor’s advice and it was very rare (if it happened at all) for them to go against it. In Mrs Jones’ case, there was an additional factor. She was a Jehovah’s Witness and that group had a principled objection to blood transfusions. If she opted for a caesarean there was a much higher risk of bleeding and the possible need for a blood transfusion would be correspondingly greater.

[57]I need to elaborate each of these points.

[58]Dr Railton has said that she would have advised Mrs Jones to continue with a vaginal birth even if the referring midwife had voiced concerns. That advice would not have been negligent. Here the Bolam test does apply. I accept the evidence of Mr Tuffnell that such advice would have been reasonable and appropriate.

[59]Further, Mr Woolfson and Mr Tuffnell agreed that there has been a change in the way in which doctors are expected to give advice. Mr Woolfson, for instance, agreed that doctors in 1992 tended to be more paternalistic than they are today. I accept Mr Whitfield’s point that the Pearce case was concerned with events in 1991. It established that, even in that era, doctors were obliged to inform patients of significant risks. But that is not inconsistent with a practice of doctors giving sometimes very firm advice as to what they thought was in their patients’ best interests. There would have been no negligence in Dr Railton couching her advice in similar terms in the hypothetical scenario which I am now considering.

[60]I accept the evidence of Mr Tuffnell that, as a matter of fact, patients did very usually follow such advice. As he said, in 1992 people came and asked for a professional opinion. They got it and generally followed it. That, too, was the evidence of Dr Railton who could not recall a patient demanding a caesarean section at that time. I did not understand Mr Woolfson to disagree with this, although he personally favoured a more open textured approach and making clear to the woman that the way forward was her decision. It would, therefore, have been very unusual for a woman in Mrs Jones’ position to go against the advice of her consultant in 1992.

[61]Mrs Jones agreed that she had been brought up as a Jehovah’s Witness but, she said in evidence, she had not been a practising Witness since the age of 13. The inference she wished me to draw was that her religion would not have deterred her from choosing a course which carried a greater risk of a blood transfusion. There is, though, a good deal of contemporary evidence to the contrary. When Jack was admitted to the neo-natal ward on the day he was born, a hospital chart had to be completed. Mrs Jones gave his religion as Jehovah’s Witness. That must have come from Mrs Jones.

[62]Two days later, on 23rd July 1992, Dr Patel wrote in the hospital notes that Jack’s condition was still critical. He summarised the problems. His point 6 was “Mother Jehovah’s Witness”. That information must have come from Mrs Jones. Dr Patel noted a phone conversation with Dr Robinson which included the following:

“If there are medical grounds for baby needing colloid support, we would have to treat the baby with them, irrespective of mother’s belief.”

[63]The following day (so 24th July 1992) another doctor wrote in the hospital notes, “This baby has a life threatening neurological illness associated with circulatory difficulties. It is possible that his condition will require the administration of blood products at certain times and this may be necessary on certain occasions.” Nine hours later, Mrs Jones in her own handwriting wrote beneath this note, “I understand the medical reasons indicated above. I do not want my child to receive blood or blood products.” There is taped into the notes at this stage a separate piece of paper on which Mrs Jones has written, “Please consider non blood volume expanders before using blood or blood components. Administration of non blood or volume expanders such as saline, dextran, Haemaccel, hetastarch and Ringer’s solution.” Mrs Jones said that this was written at the suggestion of her mother. It is not entirely clear when it was written (it is neither dated nor timed), although it is probably right to infer that it was after the previous note from Mrs Jones which I have quoted above. In cross examination, Mrs Jones said that when Jack now goes to hospital, she still describes him as a Jehovah’s Witness. Taking all of this together, I am afraid that I did not accept Mrs Jones’ evidence that her belief in the principles of the Jehovah’s Witnesses was something which she had left behind in her early teenage years. Whether it grew out of this or had some separate origin, I do not know, but she accepted that she had a phobia about blood transfusions. She did say that this would not have deflected her from her wish to have a caesarean.

[64]In his closing submissions, Mr Whitfield argued that her religion and attitude to blood transfusions were beside the point because Dr Railton had not said that she would have mentioned these as a likely consequence of a caesarean and, in any case, vaginal birth could lead to post partum bleeding as well. I do not accept these points. Dr Railton did say in her oral evidence that she would have been concerned about the drastically increased risk of Mrs Jones bleeding if she had a caesarean section (as opposed to giving birth vaginally). The two experts agreed that the risk of having to have a blood transfusion was greater with caesarean section than with vaginal birth. At this stage of the exercise, I must assume that Dr Railton did mention the alternative of a caesarean section. If she did, I find that she would also have spelt out its risks as part of the reason why she would nonetheless advise Mrs Jones not to choose that option. In some situations there may be alternatives to blood transfusions, but when Jack was ill and in potential need of blood, they were not alternatives which immediately occurred to his carers. On the contrary, they contemplated what would have been the drastic step of overriding Mrs Jones’ objections to transfusions.

[65]I find these entries in the notes significant for another reason. They show that Mrs Jones’ antipathy to blood transfusions was particularly strong – so strong that she was willing to give them priority over what the doctors said might be Jack’s urgent medical needs. This, together with her acknowledged phobia of blood transfusions, mean that I cannot accept that she would still have been willing to chose to have a caesarean section with its added risk of bleeding and the possible need for a transfusion.

[66]In addition, for Mrs Jones to have made that choice would mean that she was one of those unusual patients who would not have followed her doctor’s advice as to the manner in which she should give birth. When she was asked in cross examination whether she would really have taken the risk of a caesarean, enhanced because of her weight, she responded that she put her trust in the doctor. They did lots of caesareans. That ‘trust in the doctor’ put her in the mainstream of patients in 1992 rather than in the category of the unusual patient who would take a course contrary to the doctor’s advice (at least where it did not conflict with her attitude to transfusions).

[67]Mr Whitfield submitted that Mrs Jones’ background as a Jehovah’s Witness was also irrelevant because Dr Railton did not know about it. This is also unpersuasive. I find that Dr Railton would have mentioned the greater risk of bleeding if Mrs Jones had a caesarean whether or not she knew that Mrs Jones was a Jehovah’s Witness. It was one of the disadvantages of that course and one of the reasons why Dr Railton would have recommended against it.

[68]Mrs Jones said that she would have given the highest priority to the welfare of her baby, even if it entailed greater risk to herself. Yet the choice with which she was confronted would not have been a straight trade off. Because of her weight, a caesarean would have entailed some risk to the baby as well as to herself. It was part of the Claimant’s case that one of the risk factors for shoulder dystocia was Jack’s likely size. I am considering a hypothetical consultation between Dr Railton and Mrs Jones at about 20 weeks when it would have been unrealistic to measure his size. Yet it is the Claimant’s case that his mother’s obesity and the weights of his sisters at their birth meant that he was likely to be a biggish baby. It was the evidence of Dr Railton that a large baby increased the technical difficulties of a caesarean. Mr Woolfson alluded to this as well in his report. He said that the risk of a caesarean to Jack would have been appreciable. Notably, he might still have suffered brachial plexus and Erb’s palsy, although it was very unlikely that he would have been asphyxiated.

[69]As against this, Mrs Jones would have been advised by Dr Railton that the risk of any shoulder dystocia in the course of a vaginal delivery was no more than 10%. She would have been reminded that when it had occurred with Rebecca the birth had still been managed by the midwife simply by laying Mrs Jones on her side. She would have been told that the risk of injury, let alone death, to this baby would be very much smaller still.

[70]I must also be cautious about placing a great deal of reliance on Mrs Jones’ evidence that she would have opted for a caesarean. She now knows that the alternative of a vaginal birth has meant that Jack is severely disabled. It is entirely unrealistic to expect her to be able to set aside that knowledge of what later occurred. This is not a question of her being dishonest when she says that she would have chosen a route which would not have entailed that result: it is just human nature. Yet, in making my judgment, I have to decide whether it is more likely than not that she would have chosen to have a caesarean without the knowledge of what was to come if she chose vaginal birth. In other words, I do have to disregard hindsight.

[71]Taking all these matters into account, I conclude that on the balance of probabilities, Mrs Jones would not have been one of those unusual patients who would have opted for a caesarean against the advice of her consultant even if she had been given appropriate advice about the risk of a vaginal birth.

[72]Consequently, I conclude that the Claimant cannot succeed in relation to the antenatal aspect of the claim.

Alleged negligence in the course of Jack’s delivery

[73]The Claimant’s criticisms of the delivery procedures can be summarised in this way: i) After the midwife’s unsuccessful attempt at delivery by the left lateral method, Dr Polson should have moved Mrs Jones straight to the McRoberts’ position combined with supra-pubic pressure. The lithotomy was a half way house which had no advantages. It was sub-standard care to try that first. ii) There should have been no more than one attempt at traction on the baby’s head combined with supra-pubic pressure. When that failed the doctors should have moved directly to intra-vaginal manipulation. iii) There was no purpose in setting up the infusion of syntocinon. It wasted valuable time. iv) Dr Railton was the senior doctor present. In this emergency, she should have taken over the manoeuvres. Instead, she allowed Dr Polson, her junior to undertake 3 attempts at delivering Jack’s body, all of which were unsuccessful. v) Overall, the 15 minutes that it took to deliver Jack’s body was far too long. I will consider these in turn. Was it negligent not to move straight to the McRoberts’ position after the attempt to deliver Jack in the left lateral position failed?

[74]The lithotomy position is preferable to the mother lying in the normal position on a bed because it is then easier for the doctor to apply greater traction to the baby’s head. Combined with supra-pubic pressure this can lead to the baby’s shoulder being dislodged and the body being delivered. The McRoberts has these and yet further advantages. It does not make the mother’s pelvis any bigger, but it does move out of the way the obstruction which is caused by the sacral promontory. Thus it brings something different to the management of the delivery.

[75]The McRoberts manoeuvre was first described by Gonik and others in a paper published in 1983 in the American Journal of Obstetrics and Gynaecology. It described a single case where it had been used successfully (I note in passing that the baby at 5.221 kilos was also very large), but said that the procedure was regularly adopted in the authors’ University of Texas Medical School.

[76]Both Dr Polson and Dr Railton were aware of the McRoberts’ manoeuvre in 1992. The Claimant argued that it would have taken a matter of seconds to move Mrs Jones’ legs from the lithotomy position back towards her chest and into the McRoberts’ position. There was no disadvantage to doing that and much to be gained.

[77]Dr Polson’s reason for not taking that course was that in 1992, McRoberts was not widely known amongst midwives. Myles, the standard text book for midwives refers to the left lateral and lithotomy manoeuvres. It does not mention McRoberts either by name or by description. Midwife Shepherd had not heard of it in 1992. In order to put Mrs Jones in the McRoberts’ position, therefore, Dr Polson would have had to explain to the midwives (and Mrs Jones) what he wanted them to do. Time was very short. Following the failure of the left lateral position, Dr Polson had had to turn Mrs Jones, from her left side on to her back and then swing her around 90 degrees on the bed. That itself was not straightforward given that by this stage she weighed 106 kilos. Three midwives then had to be arranged (even for the lithotomy): one for each leg and one to apply supra-pubic pressure. Dr Polson had also cut an episiotomy (and had re-gloved in order to do so). All of this had been accomplished in the approximately two minutes between contractions. In addition, Dr Polson said that lithotomy had always been successful in his experience before.

[78]Mr Tuffnell accepted that it was recognised today that the McRoberts was superior to the lithotomy and it has become the standard first line technique (the lithotomy does not feature in the current RCOG guideline on the management of shoulder dystocia), but it only became the standard approach after about 1996. While it would have been preferable to go straight to the McRoberts, it was not substandard care in the circumstances of this case to first try the lithotomy.

[79]Mr Woolfson’s views were not very clear. In his evidence in chief he said that there was no point in trying the half-way house of lithotomy when it was recognised that the full McRoberts was likely to be more successful. However, in cross examination he said that he did not criticise Dr Polson for resorting first to lithotomy. In re-examination, he said that going straight to McRoberts might have been a more advisable way forward. That answer falls short of saying that no reasonable obstetrician in Dr Polson’s position could have tried lithotomy first.

[80]I conclude that Dr Polson was not negligent in this regard. Hindsight is a wonderful thing. Dr Polson and Dr Railton were both candid enough to accept that with hindsight it would have been preferable to go straight to McRoberts. However, this was an emergency. I have explained the steps which had been taken in the quiescent period since Mrs Jones’ last contraction (when she had been in the left lateral position). None of those were criticised. In the very short time that was then left before the next contraction was due, it was not unreasonable for Dr Polson to proceed with what was still the standard next procedure, rather than explain a novel alternative to the midwives. In theory, Dr Polson could have simply commanded the midwives to push Mrs Jones’ legs back further towards her chest and to abduct them, but there would have been risk of confusion if he did not explain what he was trying to achieve. Mr Tuffnell’s evidence was that the lithotomy procedure was not sub-standard. To the extent that Mr Woolfson’s views were to the contrary, they were equivocal. Was it negligent not to move straight to intra-vaginal manipulation after the lithotomy (combined with supra-pubic pressure) had failed?

[81]Dr Polson said that, after the lithotomy failed to deliver Jack, he thought it was worth having another try at achieving his birth through external manipulation and to do so with the McRoberts manoeuvre. The quiescent period between contractions would have allowed time to explain to the midwives what he wanted to do. He was also concerned that the next alternative, internal manipulation, ran the risk of damaging the baby, notably by causing brachial plexus and Erb’s palsy. In his thinking, it was worth making another attempt at external manipulation and to try and avoid those risks.

[82]Mr Woolfson’s report said that if supra-pubic pressure together with downward traction on the baby’s head had not achieved delivery within a minute or so, then there was little point in continuing and the doctors should have moved to intra-vaginal manipulation of the shoulders. Before trial, the two experts met and produced a joint report responding to the questions asked of them. Question 17 asked, “Do you agree that if the Defendant’s doctors and midwives took the steps which they describe in their witness statements in the order which they say that they were taken, this would in 1992 have represented a routine/reasonable approach to the management of a difficult shoulder dystocia?” Mr Woolfson answered, simply “No.”

[83]In his oral evidence, however, he expressed a different view. In cross examination he said that in an emergency such as this, he could not be critical of Dr Polson for next trying a McRoberts if it was done quickly.

[84]Mr Tuffnell had answered question 17 in these terms, “Yes – This was an extremely difficult shoulder dystocia managed in the presence of the 2 most senior medical staff on duty. They followed a pattern of management in line with good practice at the time. Unfortunately in some cases it is very difficult to resolve shoulder dystocia. The claimant’s assertion that a baby can always be delivered in a time such as to avoid damage is clearly wrong, particularly given that the damaging mechanism in shoulder dystocia is much more complex than simple cord occlusion which is the mechanism which seem to be used to justify a good outcome with a shorter birth interval.”

[85]In his examination in chief, Mr Tuffnell confirmed that in his view the attempt at McRoberts after the lithotomy was in accordance with an acceptable standard.

[86]In cross examination, it was put to Mr Tuffnell that this view was contrary to his answer to Question 19 in the Joint Report. This asked him and Mr Woolfson, “Do you agree that if a stuck shoulder cannot be dislodged by supra pubic pressure and downwards traction in a minute or so, the obstetric team should move to intra-vaginal manipulation?” Both experts answered “Agreed: if supra-pubic pressure and downward traction for a minute or so had not been successful then vaginal manipulation was required.”

[87]Mr Whitfield suggested that this question was clearly prompted by the views that Mr Woolfson had expressed in his report and to which I have referred at the beginning of paragraph [82] above. The answer to question 19 showed that Mr Tuffnell then agreed with those views. Mr Tuffnell said that this was not so. When addressing questions posed for a joint meeting of experts he did not try to work out the origin of the questions or to what they were intending to allude in the earlier reports. Instead, he assumed that the answers which he gave would be read as a whole. In this case, his answer to question 19 was to be read in conjunction with his answer to question 17 in which he had endorsed the whole sequence of manoeuvres that the doctors and midwives had undertaken in the course of Jack’s delivery. I accept this response. Whatever ambiguity there was in the answer to that question taken in isolation, I do not think that by answering question 19 as he did, Mr Tuffnell was intending to resile from the opinion that he had expressed shortly before in his answer to question 17. In cross examination, Mr Tuffnell said that he thought that question 19 was asking about how long traction and supra pubic pressure should have been used in the McRoberts position. I accept this evidence.

[88]Here, too, I reject the argument that Dr Polson was negligent for trying the McRoberts position after the lithotomy failed. He had the support of Mr Tuffnell and there was only the, once again ambivalent, evidence of Mr Woolfson to suggest that it was sub-standard. There was a logical basis for the position taken by Dr Polson and Mr Tuffnell. McRoberts was understood to have advantages over the lithotomy and now is thought to be able to resolve 80-90% of cases of shoulder dystocia. Consequently, there was some prospect that it might be successful even though the lithotomy had failed. Because of the risk of injury to a baby from internal manipulation, there was also good reason to make another attempt at delivery via McRoberts before resorting to that potentially dangerous alternative. Of course, these potential advantages had to be weighed against the risks of asphyxia and the risk that this attempt, too, might be fruitless. But in the emergency situation which faced the doctors, and in view of the expert evidence, it is not possible to characterise the decision to attempt to deliver Jack by the McRoberts method as sub-standard.

Was it negligent to set up the infusion of syntocinon?

[89]Syntocinon has two purposes: it can speed up contractions and it can inhibit bleeding after the completion of delivery. The Claimant argues that it could serve no purpose in the present case. First, it would take about 15 minutes before it could have any effect on contractions and that would be far too late to benefit Jack. Second, syntometrine is more effective in controlling post-delivery bleeding and that was what was used in the present case.

[90]The Defendant agreed that there would be a delay of about 15 minutes before syntocinon had any effect on contractions, but disagreed that it was valueless. It is not necessary for me to resolve these matters. I accept that the administration of the infusion was undertaken by the midwives. It did not divert either Dr Polson or Dr Railton from the other steps they were taking to achieve the delivery of Jack’s body. Consequently, this measure had no causative link to the time that it took to bring about delivery.

Was it negligent for Dr Railton not to take over at an earlier stage?

[91]Dr Polson’s evidence was that the decisions as to what external manipulation methods to try were taken by the team together, including Dr Railton. I have considered and rejected the criticisms that are made of those steps. There is no evidence that any of these attempts at external manipulation would have had any better prospect of success if they had been performed by Dr Railton. The present allegation, therefore, really concerns the first efforts at internal manipulation by Dr Polson. It will be recalled that he sought to do two things: pull out Jack’s posterior arm; and then break the clavicle. He was able to do neither because his hands were too large.

[92]Mr Woolfson considered that Dr Railton, as the most senior doctor present, should have stepped forward to deliver the baby expeditiously at least once it was apparent that internal manipulation was going to be necessary. Once she did this, delivery was achieved relatively quickly.

[93]Here, too, Mr Woolfson modified his position in the course of cross examination. He acknowledged that the current RCOG guidelines recommend both attempting to deliver the posterior arm and internal rotational manoeuvres as appropriate alternatives. The RCOG says that which of the two to try first depends on the clinical circumstances. Mr Woolfson acknowledged that this implied that in some cases the two methods might need to be tried in sequence. Mr Woolfson then agreed that he was not critical of Dr Polson for choosing to try to deliver the posterior arm first. He reiterated in answer to questions from myself, that he was not critical of Dr Polson for first trying to manoeuvre out Jack’s posterior arm or shoulder.

[94]Mr Tuffnell also agreed that Dr Polson’s aim of delivering the posterior arm was a reasonable one. He considered that the senior doctor present would be in overall charge, but it had to be remembered that Dr Polson was a senior registrar and not far short of becoming a consultant himself. He took the lead in moving Mrs Jones from left lateral to the lithotomy position. It would then have been unusual for a consultant to move him out of the way and take over. It was also not unreasonable for Dr Railton to allow Dr Polson to make the first attempt at internal manipulation. The problem with the size of Dr Polson’s hands was not something which should have been predicted.

[95]In these circumstances it would be impossible for me to find that Dr Polson or Dr Railton had been negligent because he and not she had undertaken the first attempt at internal manipulation. I do not do so. Overall was it negligent for the medical team to take 15 minutes to deliver the remainder of Jack’s body?

[96]In cross examination Mr Woolfson agreed that all of the procedures which were undertaken were conventional, appropriate and in a sequence which was conventional and appropriate. His criticism was of the overall time which it took to achieve delivery.

[97]If and so far as this was a discrete allegation of negligence, I have to confess that I found it rather hard to follow. Each of the manoeuvres was intended to achieve delivery of Jack’s body. In prospect, each had some chance of success. When it proved unsuccessful, the time taken to attempt it was past. There was no alternative but to go on to another. In each case (with the possible exception of Dr Polson’s unsuccessful efforts to insert his hand) it could only be known that the attempt was unsuccessful when Jack’s body was not delivered with the next contraction. The rate of the contractions therefore affected the overall timing. As for the time taken to achieve delivery via internal manipulation, there was no evidence that the doctors were not trying as hard as they could to complete delivery expeditiously. In Mr Tuffnell’s experience, this could sometimes take as long as 7-8 minutes.

[98]Mr Tuffnell also explained why it was not (as even the current RCOG guidelines make clear) standard practice to address shoulder dystocia by moving immediately to internal manipulation. Because of the possible dire consequences of asphyxia, it might be thought that this would be prudent. However, as Mr Tuffnell explained, it is not every case of shoulder dystocia which is accompanied by asphyxia. The early manoeuvres are also very often effective. I have already mentioned the high rate of success that the McRoberts manoeuvre can achieve. That manoeuvre is also preferable because it avoids the risk of brachial plexus and other injuries which can result from internal manipulation. Finally, it is not presently known whether the ultimate success of internal manipulation might in part be due to the efforts at external manipulation which will usually have come first.

[99]I accept this evidence and reject the argument that the doctors in this case were negligent because of the overall time that it took to achieve Jack’s birth.

Conclusion

[100]Jack’s cerebral palsy is a tragedy for him and his family. There is no dispute that his condition is due to the interval between the delivery of his head and his body and the fact that the cord was compressed during that time. It created an obstetric nightmare for the many experienced medical staff who were on hand. Dr Railton has delivered many thousand babies. She has known over 100 cases of shoulder dystocia. Jack’s was the worst case that she has ever come across. However, I have concluded that there was no negligence in the steps that either she or Dr Polson took or did not take in the course of Jack’s delivery. For the reasons that I have given earlier, Jack has no claim as a result of anything that was done or not done in the course of Mrs Jones’ antenatal care. It follows that the Defendant is not liable to the Claimant and the action is dismissed.