Croft (A Child) v Heart of England NHS Foundation Trust [2012] EWHC 1470 (QB)

[2012] EWHC 1470 (QB)Case No HQ/08/X04436
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/05/2012
Before
MR JUSTICE HICKINBOTTOM
Between
Arthur Croft (a child suing by his mother and litigation friend, Donna Croft)ClaimantHeart of EnglandDefendantNHS Foundation TrustDefendant
Christopher Kemp (instructed by Tozers LLP) for ClaimantJohn Whitting QC (instructed by Beachcroft LLP) for DefendantHearing Hearing dates: 16, 17 and 18 May 2012Judgment

Introduction

[1]The Claimant Arthur Croft was born at Solihull Hospital, Birmingham, on 15 April 1997.[2]During the course of the birth, he suffered an injury to the nerves in his neck, and a consequent permanent weakening and loss of function in his right arm. In this action, he claims that that injury was caused by the negligence of the midwifery team involved in the delivery (and, in particular, Midwife Anghelica Haughton now Powell-Daley, who was the accoucheur and senior midwife in charge), for whom the Defendant Trust is vicariously responsible.[3]The trial (at which the Claimant was represented by Christopher Kemp of Counsel and the Defendant by John Whitting QC) was restricted to issues of liability, quantum not being in dispute. There was oral evidence from the three people present in the delivery room at the relevant time (the Claimant’s mother and father, and Midwife Haughton), as well as Mr David Sturdee (who is the Consultant Obstetrician, under whose care the Claimant’s mother was booked). Additionally, four experts gave evidence: Mr Leroy Edozien (Consultant Obstetrician and Gynaecologist at St Mary’s Hospital, Manchester) and Mrs Jennifer Fraser (Lead Midwife at the Norfolk and Norwich University Hospital NHS Foundation Trust), instructed on behalf of the Claimant; and Mr Richard Porter (Consultant Obstetrician and Gynaecologist at the Royal United Hospital, Bath) and Mrs Susan Brydon (Senior Clinical Midwife at the Queen’s Medical Centre, Nottingham), instructed on behalf of the Defendant.

Medical Background

[4]For the purposes of the delivery of a child, the female pelvis has an inlet which is usually oval-shaped, being wider in the transverse diameter (side-to-side) than the anterio-posterior (front-to-back) diameter. The pelvic outlet is also oval, but wider in the anterio-posterior diameter. The normal mechanism of labour is that the foetal head will enter the pelvis through the inlet in a transverse or lateral position (i.e. with the baby’s face facing to one side or the other), with the shoulders in the anterio-posterior diameter. The shoulders remain more or less in that diameter, whilst the head, upon reaching the pelvic floor, rotates to the same diameter to facilitate its delivery of the head, reverting to the lateral once it is delivered.[5]Usually, the head having been delivered, during the course of the next uterine contraction, the shoulders and body are delivered. Whilst the accoucheur guides the baby’s body out, he or she does not impose anything more than modest traction: the baby is spontaneously pushed out by the force of the contraction.[6]However, where the shoulder girdle of the baby is wide, following delivery of the head, the leading or anterior shoulder can become impacted against the symphesis pubis, preventing the shoulders from spontaneously descending as they should. To enable delivery of the baby, this obstetric emergency (known as “shoulder dystocia”) requires manoeuvres other than normal downward traction and episiotemy. The condition is difficult to predict, and its severity cannot be assessed until after the head has been delivered. By its nature, the accoucheur midwife is usually the first clinician to identify the problem. It is uncommon but, understandably, the rate of occurrence rises sharply with foetal size, being perhaps over 10% for babies over 4.5kg. It requires speedy and decisive action when encountered, to prevent foetal hypoxia which may lead to brain damage or death.[7]Shoulder dystocia is diagnosed by(i) the retraction of the delivered baby’s head into the pelvis, known as “turtling”, which (said Mrs Fraser) was a sign of more than moderate shoulder dystocia; or(ii) the failure of the delivery of the baby’s shoulders and body during the first uterine contraction after the delivery of his or her head. It was common ground between the experts (and agreed by Midwife Haughton) that, if there is any sign of turtling, then any traction of the head would be inappropriate and dangerous. During the first uterine contraction after delivery of the head, it is appropriate for the accoucheur to apply some modest traction to the baby’s unless and until it is apparent that resistance is being encountered. As soon as resistance is apparent, then, again, it is common ground (and, again, agreed by Midwife Haughton) that any further traction to the head would be inappropriate and dangerous.[8]Once shoulder dystocia is diagnosed or suspected, the first step for the midwife is to summon assistance, because the recognised steps to overcome the problem require more than one clinician. First, the mother’s hips are hyperflexed onto or towards her abdomen (the McRobert’s manoeuvre): this change of position effectively straightens out the exit passage for the baby. Second, supra-pubic pressure may be applied (the Rubin manoeuvre): this may assist by mechanically disimpacting and hence dislodging the shoulder. One or both of these steps usually result in prompt delivery of the baby. If they do not, then more intrusive manoeuvres are available.[9]The brachial plexus is a group of nerves emerging from neck region of the spine, which supply the muscles of the shoulder and forearm. When stretched, these nerves may become damaged or even torn, leading to partial or total paralysis of the arm (a condition known as “Erb’s palsy”). When the nerves are torn from the spinal cord or otherwise ruptured, the condition is usually permanent. Where there is no rupture, the prognosis is good and full recovery within a short period is common.[10]Erb’s palsy is a known complication of birth delivery, during which the head may be the subject of lateral traction away from the shoulder. Of course, the condition might be iatrogenic in cause, i.e. it might result from the application of physical force to the head by the accoucheur, particularly after the head has been delivered and prior to the delivery of the shoulders and body. Indeed, until fairly recently, it was generally thought that natural uterine propulsive forces on the baby’s neck during delivery were not sufficient, or in the right directional plane, to cause damage to the brachial plexus; and the accepted medical view of causation of such injuries during delivery was that in all cases the nerve damage was caused by the application of lateral and downward traction to the foetal head while the anterior shoulder was impacted against the symphesis pubis (see, e.g., Stirrat GM and Taylor RW, Mechanisms of obstetric brachial plexus palsy: a critical analysis, Clinical Risk 2002; 8: 218-222); or, at least, the majority of such injuries were caused thus so that, when a baby was born with a brachial plexus injury, there should be an assumption that the cause was excessive traction.[11]However, that is not now established thinking, the change being prompted by a recognition that the single mechanism of lateral and downwards traction to the baby’s head against resistance cannot readily explain all of the available data, e.g. reports of significant numbers of injuries being suffered to the posterior shoulder, and/or of obstetric brachial plexus injury without any evidence of shoulder dystocia.[12]I was not referred to much of the wealth of learned literature on the cause of obstetric brachial plexus injuries; but, in Bennion v North East Wales NHS Trust (24 February 2009, Unreported), a claim involving such an injury, His Honour Judge Halbert sitting in the Chester County Court reviewed over 80 pieces of literature and heard evidence from biomechanical engineers and orthopaedic surgeons as well as obstetric experts, in the course of a ten day trial. In a monumental judgment, he concluded (at paragraph 7.7), as follows:
“… I am not satisfied on the evidence before me that any conclusion can be drawn as to whether the majority of [obstetric brachial plexus injuries] are probably caused by traction, probably caused by propulsion or probably caused by a combination of both.”
(emphasis in the original).[13]That conclusion was the result of his close and careful analysis of the literature which includes, for example, Draycott T et al, A template for reviewing the strength of evidence for obstetric brachial plexus injury in clinical negligence claims, Clinical Risk 2008; 14: 96-100 (“the Draycott paper”) in which, on the basis of the available literature, the authors conclude:
“Causation of obstetric brachial plexus injury is multifactorial; evidence suggests that while some cases are traction mediated, others may not be. There is growing acceptance in both the medical literature and case law that the propulsive forces of uterine contraction may play a part. The assumption that the presence of an injury is evidence that traction must have been applied is no longer valid. Injury may occur regardless of best efforts of the accoucheur. Diagnostic traction is acceptable and claimants now need to demonstrate factual evidence of the use of excessive force or other inappropriate management to succeed in arguing negligent management.”
[14]Although in the Particulars of Claim (at paragraph 37(g)), the Claimant initially relied upon the principle of res ipsa loquitur (i.e. negligence can be assumed from the fact of the injury suffered by the Claimant), at trial Mr Kemp frankly and properly accepted that, in the light of the current state of literature as analysed by Judge Halbert in Bennion, the Claimant could not rely upon any such assumption. Whilst the possible mechanisms of such injuries during delivery are not irrelevant, to succeed, the Claimant must, in the usual way, prove his case on the basis of all the available evidence, and in particular the evidence of the eye-witnesses to the delivery.[15]I consider that evidence below (paragraphs 24 and following).

The Case History

[16]The Claimant’s mother is Donna Croft, whose first child was born at Solihull Hospital on 15 September 1994. The pregnancy was uncomplicated. There was a successful forceps delivery.[17]She became pregnant for the second time in July 1996. The pregnancy was essentially normal throughout. The estimated due date was 19 April 1997. Mrs Croft was admitted to the delivery suite at Solihull Hospital at 12.10 on 14 April.[18]Labour progressed perhaps slower than usual for a second birth, but normally. From about midnight, epidural analgesia was administered. At 01.45 on 15 April, the medical records note: “Contractions 4:10 mild”, i.e. contractions were occurring at the rate of four in 10 mins or every 2½ mins. Following an internal examination at 02.00, the notes record that the cervix was 9cm dilated, with the baby’s head in the left occipto-posterior position. That is the only noted position of the baby’s head.[19]A further internal examination at 03.20 showed the cervix fully dilated, but it is noted (and Mrs Croft confirmed in her evidence) that there was no urge to push, perhaps as a result of the epidural which was at that stage topped up. At 04.00, it is noted that Mrs Croft was complaining of rectal pressure; and pushing started at 04.15, when it is noted that “presenting part [i.e. the baby’s head] visible”. The Claimant was delivered at 04.31. For the purposes of this claim, what happened during those sixteen minutes, 04.15 to 04.31, is crucial.[20]In paragraph 37 of the Particulars of Claim, there are set out a number of allegations of negligence, but by trial those had been narrowed down effectively to one: following the delivery of the Claimant’s head and at a time when she had encountered shoulder dystocia, over a period of some minutes (a period of 5-10 minutes is pleaded), Midwife Haughton pulled the Claimant’s head, repeatedly and with force, before summoning assistance by pressing the appropriate buzzer.[21]After assistance was summoned, the Claimant makes a further complaint, namely that one of the midwives who had been summoned, on entry to the delivery room, got onto the bed and knelt straddling Mrs Croft’s upper chest, facing her feet, and with her back very close to Mrs Croft’s face, and applied “heavy fundal pressure at the top of Mrs Croft’s ‘bump’, at the point the abdomen meets the chest” (Particulars of Claim, paragraph 25). It is alleged that that manoeuvre was attempted for about one minute, but was unsuccessful in freeing the baby (paragraphs 25-6). After that manoeuvre, Mrs Croft was put the McRobert’s position, and delivery was effected shortly thereafter (paragraph 29). However, although the Claimant submits that such pressure on the fundus was inappropriate and potentially dangerous (to both baby and mother), by the end of the trial Mr Kemp conceded on the Claimant’s behalf that any such pressure in this case could not have caused or materially contributed to the injury suffered: the brachial plexus injury was, he submitted, caused by the inappropriate traction exerted on the Claimant’s head by Midwife Haughton as she attempted to deliver the shoulders.[22]In judging whether Midwife Haughton was negligent, the standard is well-established, namely that of a reasonably competent midwife carrying out the functions expected of a midwife in the delivery suite of a district general hospital (Bolitho v City & Hackney Health Authority [1998] AC 232). However, in this case, it is common ground that, if she exerted traction on the baby’s head as described by Mrs Croft and her husband (or, indeed, any traction when she knew or ought to have known that the baby’s shoulder was impacted), that would have been an inappropriate and dangerous manoeuvre which no reasonably competent midwife would have performed – a proposition which Midwife Haughton accepted – the issue before me being whether she exerted such traction. For the Claimant to succeed, I have to be satisfied on all the evidence, and of course on the balance of probabilities, that she did so.[23]In relation to the second complaint, the Defendant accepted that, in the circumstances described by Mrs Croft and her husband, putting pressure on the fundus (as opposed to the supra-pubis area) would also have been an inappropriate and dangerous manoeuvre which no reasonably competent midwife would have performed. Again, Midwife Haughton agreed. The factual issue for me – although, in the absence of any positive case on causation, a matter going to the credibility of Mrs Croft and her husband more than anything else – is again whether the manoeuvre described by Mrs Croft and her husband in fact occurred.

The Evidence

[24]During the crucial period of 04.15 to 04.31, three people were present in the delivery room all of the time: Midwife Haughton, and Mrs Croft and her husband. At some stage during that time, Midwife Haughton summoned assistance, and other clinicians arrived; but none of them gave evidence.[25]Midwife Haughton qualified as a midwife in 1983, and has been a Sister on the delivery ward at Solihull Hospital since 1990. By 1997, she was therefore an experienced midwife, who was involved in the training of other midwives (although, she accepted, training at that time was informal). She said that she had dealt with a few cases of shoulder dystocia per year, both before 1997 and since. In all of the deliveries she has made, she said that this is the only case of which she is aware in which there has been permanent Erb’s palsy.[26]The relevant events in this case took place in April 1997. Her statement is dated 22 September 2009, and she said that she was not asked to recall the relevant events until the letter of claim was received in late 2006. In the intervening time, she performed hundreds of other deliveries, some of which involved shoulder dystocia. It is therefore unsurprising that she had no specific recollection of this particular delivery. Her evidence, she said, was consequently based upon the medical records and her usual practice in 1997.[27]Midwife Haughton was the assigned midwife to Mrs Croft, from when she came on duty before midnight on 14/15 April. From 23.20 until delivery at 04.31, the medical notes are in her hand. After the notes at 03.20 (full dilation, but no urge to push) and 04.00 (“c/o rectal pressure”), the notes read as follows: 04.15 Commenced pushing. Presenting part visible. 04.31 Normal delivery of live male. Moderate shoulder dystocia. Apgar 8 & 9. 3rd stage complete – Blood loss 100 mls. 2º tear sutured… [Birth weight] 4.390kgs. Epidural catheter removed intact. IVI discontinued. Baby to be seen by Paediatrician – Re Shoulder dystocia.”[28]Midwife Haughton said that the delivery notes would have been written by her after the delivery, but before the baby was sent to the post-natal ward or the paediatrician; the notes would have gone with mother and baby on departure from the delivery suite. They were supplemented by a computerised record, headed “Birth Register Entry”, again compiled by Midwife Haughton. That provides little additional information. By the standard heading “Shoulder Dystocia”, she input: “Minor problems”. By “Other Attendants [at the delivery]”, Midwife Haughton handwrote just: “Husband”.[29]Although no specific claim of negligence is made in respect of the standard of medical records kept, Mr Kemp submitted that the records of the steps taken to deal with the shoulder dystocia encountered and the results of those steps were inadequate for 1997 – which, he submitted, should be taken into account in the assessment of Midwife Haughton’s competence in other matters. I return to that issue below (paragraphs 44 and following). Certainly, the records are sparse, and provide Midwife Haughton with little by way of assistance to her recollection as to what she did in this specific case.[30]Consequently, she relied almost exclusively upon her usual practice in 1997, as she recollected that. As I have already indicated, by 1997, Midwife Haughton was an experienced midwife, had been a Sister for 7 years and had encountered shoulder dystocia, infrequently but regularly, before.[31]She said that it was clear from the records that Mrs Croft began to push at 04.15; as she had epidural anaesthetic, she would probably have required urging to push. The baby’s head was delivered some time after then, although she could not say precisely when. It would only have been after delivery of the head that problems with the shoulders would have been apparent.[32]Her statement (at paragraph 11) refers to turtling (the retreat of the head back into the vagina) as a sign of shoulder dystocia; but, in her oral evidence, she said that turtling did not occur in every case, and, where it did not, shoulder dystocia was diagnosed by resistance to delivery being encountered during the uterine contraction following the delivery of the head. She said that, immediately upon recognising the emergency (by turtling or such resistance, in this particular case she could not say which), she would have pressed the emergency buzzer and shouted “Shoulder dystocia” which would have alerted the midwives attending that the on-call consultant obstetrician and senior house officer, and paediatrician, should be summoned by bleep. They would have been expected to attend within 2-3 mins of the alarm being sounded, sooner if they happened already to be nearby. Whilst they were on their way, the accoucheur (in this case, Midwife Haughton) and the other midwives who had been called would have continued their attempt to deliver the baby, by performing the McRobert’s manoeuvre and also possibly the application of supra-pubic pressure. As the Claimant was delivered before the doctors who had been summoned had arrived and intervened, she thought that she and the other midwives delivered the Claimant within about 3 mins of her pressing the emergency buzzer to summon help. That would have been done, by placing Mrs Croft in the McRobert’s position, with knees flexed towards her chest. Putting her into that position would have taken no more than 1½-2 mins. On the basis that contractions continued at the rate of one every 2½ mins and the doctors had been summoned but were not involved in the delivery, Midwife Haughton said it was likely that the Claimant was delivered on the first contraction after the buzzer was sounded. As the notes do not refer to an episiotemy (and do refer to a second degree tear), she did not think that any episiotemy was performed.[33]She said she found the allegation that a midwife straddled Mrs Croft in the way she and her husband described to be “incredible”, as it would have been physically very difficult because of the narrowness and height of the bed and the condition of Mrs Croft; and dangerous for both baby and mother. She had never seen or heard of such a manoeuvre before: had it been performed or attempted she said she would have told the midwife to desist in no uncertain terms, and she would have remembered it.[34]Nor had she ever encountered or heard of the imposition of fundal pressure as a technique or even as a concept. She said that she considered that it would be counterproductive in the event of shoulder dystocia, as it would likely further impact the baby’s shoulder into the pubic bone.[35]Midwife Haughton could not recall anything about this specific delivery: she relied upon her usual practice, in 1997. Mrs Croft and her husband, of course, had both been at the birth of their first child; but, crucial to the claim, was their actual recollection of what occurred during the sixteen minutes from the delivery of the Claimant’s head to his birth. The letter before action dated 24 October 2006 stated that, “Donna and Ian Croft recall this birth vividly”. In her evidence, Mrs Croft said that her recollection was “really clear”, particularly retained in her memory because it was a frightening and hence memorable experience.[36]Mrs Croft’s statement was, as is usual, adopted as her evidence-in-chief. Although dated 20 February 2008, so far as liability is concerned it was in identical terms to an earlier statement in respect of all issues she signed on 1 April 2005, i.e. 8 years after the relevant events. She explained that, understandably, it took some time to come to terms with her son’s disability, and to find out about his condition and its possible causes.[37]In respect of the relevant 16 minute period, her statement was brief. She said:
“6. Eventually, they told me that I need to push – I found this very difficult. I eventually got Arthur’s head out – I do not know how long this took. I could not see Arthur’s head but knew that the midwife was trying to get his shoulders out – I could see her hands but not what they were holding. She took what seemed like a long time but it probably was not. She then said that she need help to get Arthur out and then what seemed like loads of people came into the room. 7. I had been lying on my back, with my head slightly up – they then laid me flat on the bed. One of the nurses got on top of me, sitting astride me, and I had her backside in my face – she then pushed on top of my bump. I also had one person on each side of me, holding my legs under the knee and pushing them back, very firmly. I think Arthur was delivered shortly afterwards and he was then whisked away.”
[38]From the witness box, she said:(i) She found pushing was difficult, and getting the Claimant’s head out was “hard work”.(ii) She had always thought that the time between the delivery of the Claimant’s head and Midwife Haughton pressing the emergency buzzer was 4-5 mins: it was certainly more than 1-2 mins, and less than 10 mins.(iii) During that time, the midwife gave the baby’s head “two or three forceful pulls”, and she “pulled forcefully, more than a couple of times”. Although the word “forceful” did not appear in statement and she could not see what the midwife was doing with her hands, she said the midwife looked as though she were struggling, and it seemed to be a real effort for her.(iv) With regard to the nurse who climbed onto her, she said she could not remember her getting into that position or how she did so – “she just appeared” – although Mrs Croft said “remembered vividly” the nurse on top of her, kneeling to either side of h the top of her chest; and she did recall the nurse climbing off her by swinging her leg over Mrs Croft’s head. During the manoeuvre, no one said anything to her about it: the nurse in question did not say anything. She did not know what type of clothes the nurse was wearing, she only saw her back; but the clothes were pale in colour. Contrary to what was said in the Particulars of Claim, Mrs Croft said that the nurse was on her whilst other midwives were pushing her legs back towards her abdomen; although she had removed herself before the baby was born.[39]Mr Croft said that he was by his wife’s head when this as happening. He said he did not see what Midwife Haughton was doing with her hands, but he saw her body which was making a pulling action. She was apparently, he said, having some difficulty pulling the baby out. The pulling happened for “a few minutes, there or thereabouts”. It was then “very frightening”, he said, because “all of a sudden the midwife hit a bell and there seemed to be a lot of panic.”[40]He too could not recollect seeing anyone get on to his wife; but he recollected a woman of Chinese or Asian extraction, with a ponytail, on his wife in the position described by Mrs Croft. He remembered “being alarmed at the procedure”, although he did not say anything about it at the time. He said that he could not recollect the clothes she was wearing, but he would have recollected if she had been wearing a skirt. But he had a firm recollection of her in that position, pushing down on the lump. Unlike his wife, but in line with the pleading, he thought that it was only after that manoeuvre that the other two midwives performed the McRobert’s manoeuvre. He thought that all of the clinicians who came after the buzzer was sounded were women, and he recollected one with pager by the door. The evidence was that the doctors on call had pagers.

Medical Records and Protocols

[41]Before I consider the evidence further, it would be helpful to introduce two issues raised by the Claimant. It was contended on his behalf that, in 1997, it was substandard for(i) the hospital not to have a shoulder dystocia protocol, and(ii) the medical notes of the delivery made by Midwife Haughton to be so sparse.[42]With regard to the lack of a protocol, the Claimant relies particularly upon a June 1994 Working Party Report of the Royal College of Obstetricians and Gynaecologists, Minimum Standards of Care in Labour. In Appendix 3 of that document, it is said that “as a matter of quality of care and risk management every delivery unit should have its own practice guidelines” with “… clear basic principles on the management of serious obstetric problems…”. The document suggests topics for local guidelines, which include, under the overall heading “Management of Second Stage”, “Shoulder dystocia”. Mrs Fraser said that her own hospital in Norwich had such a protocol from 1995, and she would have expected any unit to have a protocol by 1997. Mr Porter and Mrs Brydon, said that, in fact, the development of protocols was not quick and, in 1997, some hospitals did not have them nor did they consider it unreasonable for a hospital not to have had a protocol by 1997. There was, consequently, an issue as to whether it was reasonable in 1997 for a delivery unit not to have a protocol in place, covering how to deal with shoulder dystocia.[43]However, the general content of such a protocol was not much in dispute. Mrs Fraser referred to an article (‘Sleep’ – a mnemonic to use in shoulder dystocia, Digest (Mar 1996) 6:1) which set out a number of sets of manoeuvres, all of which have the following essential steps:(i) call for help,(ii) the McRobert’s manoeuvre, and(iii) the application of supra-pubic pressure. It was common ground that any protocol should have set out these steps.[44]Turning to the relevant standard for medical notes, the Claimant relied particularly upon Standards for Records and Record Keeping, an April 1993 publication of the United Kingdom Central Council for Nursing, Midwifery and Health Visiting. That document stressed that medical notes need to record problems that arise, action taken in response, the patient’s response to that action and the outcome (see, e.g., paragraphs 4.2, 5.4, 7, 14.2 and 41.2).[45]Mr Kemp submitted that Midwife Haughton’s notes of the delivery indicate that shoulder dystocia was encountered but, vitally, they do not indicate what steps were taken in response, the chronology of those steps and the effectiveness of specific steps taken. He accepted that the standards expected of medical records had risen substantially in the meantime but, in the light of that 1993 document, the notes in this case were substandard by the standards of the day. Mrs Fraser in particular supported that contention: she said that the notes of the delivery were “dreadful” (Report, paragraph 59). Mr Porter and Mrs Brydon considered that, given the rise in standards over time, the short notes in this case were sufficient for 1997.[46]Midwife Haughton’s evidence on this issue was not compelling. She accepted that the notes produced would not have been adequate, even in 1997, if the outcome had not been “good” which (she said) in this case it was. However, as the 1993 standard indicates, notes should set out problems encountered, steps taken in response and outcome, whether good or poor. I do not see any rational correlation between the outcome and the standard of medical notes. As in this case, at the time of the delivery notes, the outcome was unknown: whilst it is clear that Midwife Haughton recognised that some injury had been done to the baby’s right arm, no one then knew the extent of that injury or its permanence.[47]Having introduced those two issues, I shall return to them below in the context of the evidence as a whole (see paragraph 59).

Discussion

[48]As I have indicated, the Claimant claims that Midwife Haughton was negligent in that, following the delivery of the Claimant’s head and at a time when she had encountered shoulder dystocia, over a period of some minutes, she pulled the Claimant’s head, repeatedly and with force, before summoning assistance by pressing the emergency buzzer. Given that negligence cannot be assumed by virtue of the nature of the injury alone, Mr Kemp accepted in his closing submissions that, for the claim to succeed, I have to be satisfied that the evidence of Mrs Croft and her husband that Midwife Haughton used forceful pulls on the Claimant’s head is essentially correct.[49]I have no doubt that, in giving their evidence, both Mrs Croft and her husband were doing their honest best to recollect the events in the delivery room that night. However, having considered all of the evidence, I am quite sure that they do not have a true recollection of those events, and in particular a true recollection of the manner in which Midwife Haughton acted from the delivery of the baby’s head to her pressing the emergency buzzer: and I am not satisfied that Midwife Haughton used any inappropriate traction to the Claimant’s head in that period.[50]In coming to those conclusions, I have taken into account, in particular, the following.[51]A number of matters were raised in the course of the trial that were either not greatly put in issue, or alternatively in my view were of relatively little moment, as follows. i) It is common ground that, if the Claimant’s posterior arm had been injured, then the claim could not succeed. However, it was barely in issue that the Claimant’s injured, right arm was the anterior arm. At 02.00, with the cervix 9 cm dilated, the baby’s position was recorded as being left occipital posterior; and, in that position, his right arm would have been anterior. The obstetric experts could see no reason why the baby would have rotated significantly from that position by the time his shoulder was impacted on the symphesis pubis; and, on the balance of probabilities, considered the injured arm the anterior arm. Mrs Fraser agreed. Mrs Brydon said that, given the limits of her expertise and experience, she could not say which arm was anterior and which posterior. In the circumstances, I have no hesitation in finding that the injured right arm was the anterior arm. ii) Mrs Fraser suggested in her report (at paragraph 67) that the bruising to the arm with which the Claimant was born was evidence of excessive traction. However, the bruising appears to have been transient, and not unusual; and the suggestion was both discounted in the joint experts’ report she signed and not put to the Defendant’s witnesses. That bruising does not significantly assist the Claimant’s case. iii) Neither are the Claimant’s APGAR scores helpful. These were high: but, by the end of the trial, it was uncontentious that such scores were of no assistance in determining what had happened prior to or during delivery. iv) Finally, there was considerable discussion at trial as to whether the delivery as a whole or the second stage of the delivery was “precipitous”. The debate was triggered by the Draycott paper (see paragraph 13 above) in which it is suggested that a short second stage may result in a faster application of propulsive forces, with the result that any brachial plexus injury is more likely to have been caused by such forces as opposed to an iatrogenic cause. I consider that the debate was of little evidential value. Mr Edozien said that the phrase “precipitous” in this context was used in different senses; and, in any event, the speed of delivery must necessarily be somewhere upon a continuum. For what it is worth, I am unconvinced that either the course of delivery looked at as a whole, or the second stage looked at discretely, was unusually quick. The evidence of Mrs Croft and her husband was that delivering the head was something of an effort, and 16 mins between the commencement of pushing and delivery of the baby was not, on the evidence, unusually short. I return to the relevance of this, in the context of the Draycott template, below (see paragraph 65).[52]Having cleared the decks, I turn to the crucial evidence of Mrs Croft and her husband. For both, these events occurred in an unfamiliar context, and in a context that was stressful, and indeed frightening or (using Mrs Croft’s word) “scary”. For all mothers, and fathers, the delivery of a child is an anxiogenic event. By the time of this delivery, Mrs Croft had been in labour for over 16 hours, and neither Mrs Croft nor her husband had had any significant sleep in that period. They did not know exactly the nature of the medical emergency; but, certainly after the emergency buzzer was sounded and several clinicians entered the suite to assist, they were aware that it was at least a potentially serious emergency. In all of the circumstances, it would unsurprising if their understanding and recollection of those events were not good.[53]After the emergency buzzer was sounded, I am not satisfied that any clinician got onto Mrs Croft, in the manner she and her husband recollect. i) Such a manoeuvre was unheard of by any of the experts or other clinicians who gave evidence. Both midwifery experts described such an action as “bizarre”. Although by a demonstration in court, Mrs Croft and her husband attempted to show that it would not be impossible on a birthing bed and over a heavily pregnant mother – and I accept that it may well not have been physically impossible – it is inherently unlikely, because of the physical difficulty of the manoeuvre in a situation where time is of importance, and its danger particularly to the mother and especially to her vulnerable uterus. In the position suggested, it would also have been particularly difficult to impose pressure on the fundus. ii) In relation to the episode, there was a significant difference in the evidence of Mrs Croft and her husband: Mrs Croft said that the manoeuvre took place at the same time as she was in the McRobert’s position, whereas Mr Croft (in line with the Particulars of Claim: see paragraph 21 above) said that the manoeuvres were done, not at the same time, but in sequence (which, given the need for speed and the effectiveness of the McRobert’s manoeuvre in most cases, would be an even more startling proposition). iii) The recollection of Mrs Croft and her husband was patchy. For example, neither could recall the midwife getting onto Mrs Croft, in what would have been a fairly extraordinary and difficult manoeuvre. Mrs Croft referred to the nurse just “appearing there”. If the episode happened, it would be remarkable that neither recalled the midwife getting into the position they assert she was in. iv) Furthermore, their evidence of the individual allegedly involved did not ring true. Mrs Croft said that the clothes of the relevant person were pale coloured; and Mr Croft said she was Chinese or Asian, and he would have recollected if she had been wearing a dress. The evidence of Midwife Haughton and Mr Sturdee (which I accept) was that the midwives’ clothing at the hospital then was a royal blue dress, and there were no Chinese or Asian midwives in the Solihull Hospital at that time. v) The person involved is pleaded as a midwife. In the light of the evidence concerning dress and ethnicity, it was suggested during the trial that she may have been some other type of clinician. However, it could not sensibly have been an assistant, because assistants would not be involved in medical procedures. With regard to doctors, the evidence was that there were or may have been female doctors on call – and doctors wore light coloured scrubs – but(i) it is unlikely that a doctor would have been amongst the first on the scene, and(ii) more potently, it is highly unlikely indeed that any doctor would have embarked on such a manoeuvre given the obvious risks involved not only to the baby but also to the integrity of the mother’s uterus which would be prone to rupture. vi) Midwife Haughton said she considered that such a manoeuvre would have been inappropriate, quite exceptional and she could not think of any possible medical advantage that could accrue by it: she had never heard of such a thing before, yet alone witnessed it. Had it been attempted, she said, she would have stopped it. I accept that evidence. Certainly, despite the paucity of the records and Midwife Haughton’s general lack of recollection of a delivery so many years ago, I am quite satisfied that she would have recalled such a manoeuvre, had it occurred or been attempted. vii) Further, I do not accept that Midwife Haughton would have sanctioned the use of fundal pressure by any type of manoeuvre. Even Mrs Brydon was surprised that Midwife Haughton had not heard of fundal pressure as a concept; and I was referred to a number of texts from pre-1997 that referred to fundal pressure and its inappropriateness for resolving shoulder dystocia (e.g. Coates T, Manoeuvres for the relief of shoulder dystocia, Modern Midwife September 1997 Vol 7 No 9, 15-19 at page 16; and Mayes Midwifery: A Textbook for Midwives, Sweet (1997)). In the light of that evidence, it is indeed curious that Midwife Haughton said she was unaware of the concept of fundal pressure. However, there was no evidence that any of the clinicians who gave evidence recalled any instance in their professional lives where they had encountered fundal pressure being used or attempted in a delivery in this country. I accept Midwife Haughton’s evidence that she had never come across even an attempt to use fundal pressure in practice, and she would have stopped any attempt at using it. Certainly, again, I am quite satisfied that she would at least have recalled such a manoeuvre, had it occurred or been attempted. viii) During the course of the trial, given the bizarre nature of the assertion, alternatives were suggested to explain the recollection Mrs Croft and her husband had; for example, that a midwife by the bedside may have leaned over Mrs Croft to apply supra-pubic pressure and, in doing so, may have put some pressure on her abdomen with her arm. However, that is only speculation. Mrs Croft and her husband had a clear recollection that a midwife knelt astride her, and applied significant fundal pressure. Whatever the true explanation, I am quite satisfied that their recollection in this regard is false: and that finding necessarily and substantially undermines their credibility so far as what occurred in the delivery room during the period of delivery is concerned.[54]I accept Mr Kemp’s submission that there was some consistency in the central assertion formally made by on behalf of the Claimant that, following the delivery of the Claimant’s head and at a time when Midwife Haughton had encountered shoulder dystocia, over a period of some minutes, she pulled the Claimant’s head, repeatedly and with force, before summoning assistance by pressing the emergency buzzer. The letter of claim refers to both parents remembering “the midwife pulling on the head for at least 5 minutes” before pressing the emergency bell. The Particulars of Claim state (paragraphs 20-22):
“[O]ne of the midwives attempted to deliver the baby by pulling repeatedly upon the baby’s head with her hands…. In doing so, the midwife repeatedly applied undue traction and excessive force…. These efforts to deliver the baby by pulling the baby’s head continued for some minutes… at least five minutes, but not as many as ten… ”
There is some consistency in these references, particularly in respect of the repeated and forceful pulling of the baby’s head.[55]However, as Mr Whitting emphasised, the evidence in the statements of Mrs Croft and her husband was weak in some significant respects. I have already quoted Mrs Croft’s statement (see paragraph 37 above). She referred to neither repeated nor forceful pulling, nor to the midwife being engaged in what appeared to be a real effort too get the baby’s shoulders out. There is no reference to the time she spent on this exercise. Mr Croft’s statement was even sparser: in paragraph 4, he simply said that the midwife was pulling on the baby, but he could not see what she was pulling. Further, neither Mrs Croft nor her husband suggested that either saw Midwife Haughton’s hands actually pulling the baby’s head. Neither could see her hands at all, and gained the impression of what she appeared to be doing that they had from what they could see from the rest of her body.[56]Midwife Haughton was an experienced midwife, both generally and in dealing with cases of shoulder dystocia. She said that she would never pull on a baby’s head if either she saw turtling or there was resistance during the first contraction after delivery of the baby’s head: she would immediately summon assistance. That was her invariable practice. She had encountered shoulder dystocia a number of times before 1997 – a few times a year for at least 7 years as Sister – and it is clear from what occurred after she had summoned help in this case that she knew the correct procedures: it is uncontentious that she placed Mrs Croft in the McRobert’s position, and the baby was delivered shortly thereafter. There was no evidence that, in all of her deliveries of babies with this complication, before or after 1997, there has ever been a case of the baby suffering permanent injury to the brachial plexus. As to how she dealt with shoulder dystocia in 1997, this was compelling evidence as to her practice.[57]In particular, she said that she would never pull the baby’s head more than once during a contraction: during a contraction, she would pull with modest and steady force, and would desist at any suggestion of an obstruction. The evidence of midwifery practice I heard was consistently supportive of that being the universal, and the most effective, practice. I accept Midwife Haughton’s evidence in that regard.[58]I also accept her evidence that she would probably have summoned assistance after the first contraction after that which delivered the baby’s head. She said that that was her practice; and the timings in this case support the proposition that that is what she did here. It is very difficult for someone in the position of Mrs Croft to have an accurate appreciation of time passing, but, doing the best she could, she said that she had always thought that 4-5 mins passed between the delivery of the head and the emergency buzzer being pressed. On the basis that(i) some minutes passed between Mrs Croft commencing pushing and the delivery of the baby’s head (she and her husband both said that delivery of the head was “hard work”),(ii) contractions were at 2½ minute intervals, and lasted something less than a minute, and(iii) Midwife Haughton would only have tried to deliver the baby’s shoulders and body during the course of a contraction, in my view it is likely that she summoned assistance after the first contraction following delivery of the head. The evidence is clear – and Mr Kemp conceded in closing – that assistance was summoned because she had diagnosed shoulder dystocia, and required assistance with that emergency. Certainly, the timing is at the very least consistent with the Defendant’s case.[59]In making these findings, I have taken into account the fact that Midwife Haughton showed that she was aware of the correct procedures for dealing with shoulder dystocia in other regards by instigating those procedures after the buzzer was sounded and assistance arrived.[60]With regard to the standard of medical records, I accept that they may have fallen below the standard reasonably expected in 1997. However, those standards were quite rapidly moving; the problems encountered with shoulder dystocia were recorded by Midwife Haughton as being “moderate” or (according to the birth register) minor, suggesting that they were reasonably straightforwardly and routinely overcome; the Claimant was born without suffering from any effects of hypoxia); and, in all of the circumstances including the evidence she gave, I am entirely unconvinced that the sparsity of the notes is compelling in showing Midwife Haughton generally lacked competence as a midwife.[61]Similarly, I do not consider the lack of a protocol to be of any material assistance to the Claimant. Even if the Defendant ought to have had a protocol in place covering shoulder dystocia, that would have done no more than set out the steps which, I am satisfied, Midwife Haughton in fact took, i.e. immediately upon diagnosing the condition she called for assistance and put the mother into McRobert’s position.[62]I have already referred to the Draycott paper (see paragraph 13 above). In it is set out a checklist of criteria for reviewing the strength of a brachial plexus injury claim, in the form of a table showing those criteria that tend to favour inappropriate traction as a cause, and those that tend to favour propulsion by uterine contraction as the cause, as follows: Propulsion injury Iatrogenic injury Posterior arm injured Anterior arm injured No shoulder dystocia Shoulder dystocia Up-to-date training No recent training Appropriate protocol followed and all manoeuvres correctly performed Incorrect manoeuvres/persistence with an ineffective manoeuvre No evidence of excess traction Evidence of excess traction Correct number of birth attendants Insufficient birth attendants Precipitous second stage Fundal pressure Temporary injury Permanent injury The authors suggest that, “although each [criterion] by itself does not establish causation, … the more positives there are in the iatrogenic injury group the more likely the injury is to have been caused by the accoucheur”.[63]This checklist has been referred to in other cases, including Bennion and the recent judgment of His Honour Judge Oliver-Jones QC sitting as a Deputy High Court Judge in Birmingham District Registry in Blakeborough v Walsall Hospitals NHS Trust (17 February 2012, Unreported) to which I was also referred. It is no doubt a helpful checklist on factors that might be taken into account in any assessment of causation. Although on the evidence before me, some presence of some criteria can result in a claim failing (e.g. if the injured arm if posterior), the paper makes clear that that assessment requires judgment and consideration of whether the relevant factors apply and, if so, the weight to be given to each. The paper does not suggest that the presence of any one factor (or combination of factors) necessarily leads to a conclusion that there is an iatrogenic cause of the injury.[64]In this case, I am satisfied that the following factors on the “iatrogenic side” are present: the anterior arm was injured, there was shoulder dystocia and the brachial plexus injury is permanent. Looked at in isolation, those factors favour an iatrogenic cause. However, as I have indicated, the paper does not suggest, as Mr Edozien did, that the presence of these three factors alone is sufficient to prove that the injury was caused by excessive traction by the accoucheur; nor, indeed, did the other evidence before me; nor, in fairness to him, did Mr Kemp submit otherwise.[65]Of the other factors, I have found that neither “precipitous second stage” nor “fundal pressure” apply. Neither factor has any great potency in the circumstances of this case. There were, at any time, sufficient birth attendants; and the issue of training can only go to the question of whether the accoucheur was properly acquainted with the relevant procedures and manoeuvres, upon which there will usually be better and more direct evidence (as in this case). The other factors somewhat smack of circularity, essentially being the available evidence in the specific case of the manoeuvres in fact performed, including evidence of traction.[66]I do not discount the potential usefulness of the Draycott paper, or the checklist that is proposes: that checklist is undoubtedly useful as such. However, as the paper stresses, in any individual case, whether the Claimant is able to prove that a particular brachial plexus injury is caused by excessive traction applied to the baby’s head by the accoucheur, will depend largely upon the evidence of what occurred in the delivery room in the crucial period between delivery of the head, and the delivery of the shoulders and body.[67]In this case, despite their undoubted honesty and best endeavours to recollect what happened, in the light of their clear mistake concerning the midwife straddling Mrs Croft on the birthing bed, the evidence of Midwife Haughton’s usual practice on encountering shoulder dystocia, and all of the other evidence before me, I consider Mrs Croft and her husband’s recollection of the midwife repeatedly and/or forcefully pulling Arthur’s head in the period between its delivery and the calling of assistance to be mistaken. On all of the evidence, they have singularly failed to persuade me that Midwife Haughton pulled Arthur’s head repeatedly, or at any time with excessive force i.e. with force in excess of that required to diagnose shoulder dystocia. Once diagnosed, she stopped all traction; she called for immediate assistance; and, in relation to that assistance, no causative negligence is alleged.

Conclusion

[68]For those reasons, this claim fails; and I shall accordingly enter judgment for the Defendant.

Cited in 3 later judgments