Watts v The Secretary of State for Health [2016] EWHC 2835 (QB)

Case No HQ15C02880[2016] EWHC 2835 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/11/2016
Before
HIS HONOUR JUDGE PETER HUGHES QCSITTING AS A JUDGE OF THE HIGH COURT
Between
STEVIE LYNNE WATTSClaimantTHE SECRETARY OF STATE FOR HEALTHDefendant
Simon Wheatley (instructed by Shakespear Legal LLP) for ClaimantMatthew Barnes (instructed by Bevan Brittan LLP) for DefendantHearing Hearing dates: 25 th, 26 th, 27 th and 28 th October 2016
JudgmentHis Honour Judge Peter Hughes QC:The Claim
[1]This is a claim for damages for personal injury sustained by the Claimant at birth on the 6th September 1993 in Stoke Mandeville Hospital.[2]In this judgment I will refer to the Claimant, either by that title or as “Stevie”. I will refer to her parents either by name or as “the mother” and “the father”.[3]The injury was a right brachial plexus injury A brachial plexus injury (BPI) is an injury or lesion to the network of nerves that conduct signals from the spinal cord to the upper limb. Depending on the severity of the injury it may be temporary or permanent. It is a well-recognised obstetric complication , otherwise known as Erb’s Palsy Erb’s Palsy (sometimes known as Erb-Duchenne palsy) is a paralysis of the arm caused by injury to the upper group of the arm’s main nerves forming part of the brachial plexus. . It has left the Claimant with permanent weakness and restriction of movement in her right upper limb.[4]Subject to liability, quantum has been agreed in the overall sum of £175,000.

The Issues

[5]It is accepted that the Claimant’s birth was complicated by the occurrence during labour of shoulder dystocia.[6]Shoulder dystocia occurs when, after delivery of the head, the anterior shoulder of the baby becomes obstructed and cannot pass below the mother’s pubic symphysis. It is a well-recognised obstetric emergency. If the shoulder is not freed and the delivery completed, the baby may die or suffer serious brain damage because of compression of the umbilical cord in the birth canal The Royal College of Obstetricians and Gynecologists issued a guideline paper on Shoulder Dystocia in 2005, and a revised 2nd Edition in 2012. It describes BPI as one of the most important fetal complications of shoulder dystocia. .[7]It is the Claimant’s case: i) that at the time of delivery, the position of the head was left occipito anterior (LOA) i.e. that the back of the baby’s head (occiput) is facing forwards on the left side of the mother ; ii) that the right injured shoulder was in the anterior Anterior means positioned towards the front of the body; posterior towards the back of the body position facing the pubic symphysis of the mother and would have emerged before the left shoulder; and iii) that the injury was caused by excessive pulling or traction to free the shoulder.[8]The case for the Defendant is: i) that no excessive force was used; ii) that, in any event, the head was right occipito anterior (ROA) i.e. that the back of the baby’s head is facing forward on the right side of the mother and the right shoulder was in the posterior position; and iii) that the likely cause of the injury was traction against the mother’s sacral promontory The sacral promontory is the bony protrusion on the posterior side of the pelvis opposite the symphysis pubis. during a rapid delivery of a large baby.

The Birth

[9]The Claimant was born at 42 weeks and weighed 9lbs 14oz. Her mother had been admitted to hospital on the 4th September for induction of labour having gone ten days over term.[10]The Claimant was the mother’s third child. In all she has had six children, all girls. Her first and second, born in January and December 1990 respectively, were also induced. The first weighed 7lbs 5oz and the second 9lbs 6oz. Her subsequent three were all born by caesarean section.[11]The mother is 5ft 4in tall. At the time of the Claimant’s birth she estimates her weight at between fifteen and sixteen stones.[12]Present in the delivery room at or about the time of the birth were the following: The mother – Gina Watts, now Freshwater The midwife – Midwife Ridgway The father – Christopher Watts [He was present for part of the time but not at the birth itself] Two additional midwives – Sisters Gleeson and Clairmont [They were called in by Sister Ridgway because of the shoulder dystocia] The obstetrics’ registrar on duty – Dr Coker [now a consultant] The paediatrician on duty – Dr Webb [Who was not present for the birth but arrived soon after][13]I have heard evidence from all save, Sister Clairmont and Dr Webb, who I understand it has not been possible to trace because of the long passage of time. The events were over twenty-three years ago, and apart from the parents the witnesses have no recollection of events and are dependent on the notes made at the time.

The Medical Records

[14]The “Summary of Labour” records the time and duration of labour as follows: 1st Stage – Start of regular contractions 14.00 Time of rupture of membranes 15.15 2nd Stage Onset 15.35 Time of Delivery 15.38[15]This part of the summary was completed by Midwife Ridgway and underneath she has recorded that the Claimant was delivered by Sisters Gleeson and Clairmont but that she delivered the head.[16]In a section headed “2nd Stage”, she has made the following entries – Presentation & Position – at onset Cephalic Cephalic – meaning head first ROA at delivery Cephalic ROA Complications severe shoulder dystocia Mode of delivery spontaneous vertex Vertex – the top of the head delivery. Supra-pubic pressure & traction to deliver shoulder[17]The ante natal and labour notes, so far as relevant, are as follows: 04.09.93 19.00 On palpation – Fundus – to dates Lie – longitudinal Position – ROL Presentation – cephalic 05.09.93 07.00 Vaginal examination. Plan to Prostin Prostin is a commonly used drug to induce labour induction. 3mg prostin inserted. [Further doses were given at 11.20 and on the 6th at 07.00 and 11.00] 06.09.93 14.30 Contracting moderately to strongly – delivery suite Contacted 15.00 Abdominal examination – Fundus at term, longitudinal lie, cephalic presentation, left occipito-anterior, engaged. FH 15.15 Patient requesting epidural Type II decelerations fetal bradycardia Fetal bradycardia is a slowing of the heart rate in the fetus. During labour it can indicate fetal distress and obstruction in the oxygen supply to the fetal heart via the umbilical cord. . Patient turned on left side. 02 given by face mask. SHO Dr Vogelzand bleeped, did not answer, registrar Dr Coker bleeped [A vaginal examination records the presentation as cephalic but the position of the head as not defined] 15.25 Seen by Dr Coker, he requested fetal blood sampling. Patient pushing strongly with contractions. Contracting 1:1 very strong 15.30 Dr Coker asked for vaginal examination to confirm/exclude full dilation of cervix Cervix – the lower, narrow part of the uterus where it joins the top end of the vagina. . This was performed by Sister Gleeson at my request. [A further vaginal examination, carried out by Sister Gleeson, again says cephalic and head not defined. It also refers to the presence of thick meconium Meconium – normally retained in the baby’s bowels until after birth but can be released during labour into into the amniotic fluid. ] 15.35 Vertex visible and delivered rapidly in left lateral position. Thick meconium stained liquor aspirated. Paediatrician called again for delivery Another urge to push Difficulty in delivery of shoulders – Severe shoulder dystocia Help summoned Episiotomy Episiotomy – surgical incision into the wall of the vagina to enlarge the vaginal opening. performed by Sister Gleeson with help from Sister Clairmont. Dr Coker present at delivery and Dr Webb paediatrician. With supra-pubic pressure and downward traction anterior then posterior shoulder delivered by Sister Clairmont and Sister Gleeson at 15.38.[18]It is apparent from the notes that there were a number of complicating factors that made it essential to deliver the baby without delay – i) the mother was experiencing pain and asking for an epidural; ii) at the same time the baby was experiencing fetal bradycardia; iii) meconium was present; and iv) on top of all that delivery was obstructed by shoulder dystocia.[19]It is not clear from the notes whether Sister Gleeson left the room following the vaginal examination at 15.30 or as to the movements of Dr Coker. Although he is recorded as present at the delivery, there is nothing in the notes to indicate that he took any part in it.[20]An entry in the paediatric notes at midnight on the 6th September, made by the paediatric SHO records that the right arm was not moving and that an x-ray was planned of the right arm and chest.

The Reaction of the Parents

[21]The parents both say that, although they were informed that Stevie had sustained some ligament damage at birth, they were led to believe that this would not be permanent, and that the first they heard of “Erbs Palsy” was from their health visitor some time later.[22]Understandably they were both deeply concerned and wanted explanations as to what had happened. In his witness statement, Mr Watts says: “After meeting the GP and finding out more about the condition Erbs Palsy and how it was caused from my own research, I called the hospital and asked for a meeting with the Chief Executive. I was very angry at what I discovered. The meeting took place within weeks of Stevie’s birth but angered me even more. The Chief Executive was doing everything she could to avoid admitting responsibility for what had happened. It seemed to me that it came back to the midwife not knowing what to do in the crisis she was faced with in that delivery room. I was so angry that I wanted to make a claim at that time. However, Gina was traumatised by the whole thing and did not want to take matters further so I respected her wishes.” [paras 27-29][23]At some stage – when is unclear – the mother drafted a letter of complaint, but it was never sent. She says that she composed the letter on her own and that her husband was not involved. It was found stored away with other items when these proceedings were commenced.[24]In the letter she set out an account of her recollection of what had happened in the delivery room. She says that she arrived in the room at about 2.45pm. The letter continues - “As soon as I got downstairs I asked for an epidural because I knew these contractions were so strong and painful I would not be able to cope. The lady said she would try to get one there would be no time. I had no other pain relief except gas. Soon I was pushing and was aware of panic around me, there was no much communication with me. I remember a midwife pressing the emergency button and many people came in, then I heard the midwife telling my husband to go out of the room, nothing was said to me. Then my husband was back and I felt myself being pulled down the table and someone leaning over my stomach. My husband was holding on to me. My baby girl was born (Stevie). At this time I thought she had died until I heard her and they had taken her to have the meconium removed.” In a later passage, she wrote:
“After reading I realised felt that it Erb’s Palsy could have been avoided as pulling her head to far away from her shoulder and stretching her neck was [indecipherable words crossed out] risky as these actions should be avoided and other measures taken. Even if the baby was at risk, pulling her like that would put her at risk as well. I don’t want to lay blame but would like a detailed account of what exactly happened and why if other measures were taken to get Stevie out. I feel I need to have a full explanation of what exactly happened.”

The Parents’ evidence

[25]In her witness statement, the mother accepts that she cannot remember much about what happened in the delivery room. She also says that the passage of time has made it difficult to recall everything that went on. The salient part of her statement [paras 18 – 26] reads as follows:
“I am not sure whether any pain relief was provided to me. I cannot remember much about what happened in the delivery suite as I was in so much pain and the whole experience was awful for me but I do remember a lot of panic and confusion around me. I believe that in addition to the midwife, Christopher and myself there may have been one other person in the room initially. I recall that the midwife was at the foot of the bed just to the right as I was looking down the bed. I recall little else about the set up in the room. I cannot recall being told to push but I was definitely pushing. I could not help myself from pushing in this situation. I recall the lady midwife, who was delivering Stevie, becoming very panicked at one point. She explained that Stevie had become stuck and therefore called for help. During the delivery, I was lying on the bed on my back. I remember the midwife trying to pull Stevie out of me with a lot of force. She was pulling so hard that my shoulders were sliding forward on the sheets. It was as if I was rocking forwards each time she pulled. She was definitely pulling on Stevie and not on my arms and legs. I cannot remember the amount of pulls, but there were a number of them, each one caused horrendous pain and all I could really see was the top of the midwife’s hat. I kept on looking upwards and shutting my eyes due to the pain. However, I definitely felt multiple forceful pulls. At one point Christopher was told by the midwife to lean across my chest and hold onto me in order to stop me being pulled down the bed. I recall that he leant over as requested. I am not sure whether he held onto any part of me with his hands. I was in a state of panic and pain. I was really worried about what was going on and whether Stevie would be okay. I cannot remember anyone pressing on my tummy. I have had the McRoberts Manoeuvre explained to me in terms of the position of the Mother and I have looked at pictures of someone in this position. I cannot remember having been put in this position. At some point during the delivery, I was advised that I was going to have an episiotomy. I cannot say when this was. However, I remember the midwife just saying in a loud panic “I haven’t got time for the anaesthetic” and they just cut. This had to be stitched up later on. I recall my ex-husband left the room. I cannot recall exactly why or how this occurred. There was a lot of panic and everything seemed to be frantic throughout when the midwife told me that Stevie was stuck. I think that by the time Stevie was born [there] were about 4 staff in the room with me. However, it is difficult to remember this clearly due to the pain I was in and the awful experience I was going through which I have since tried to block from my mind. Immediately after Stevie was born I do not recall hearing her cry at all. She was put on breathing apparatus. I recall that this was down at the end of the room. She apparently had respiratory problems due to meconium. I recall being told “the baby’s arm is poorly”
. The midwife said that they had to really pull her out because she was stuck”.[26]The father’s account in his witness statement is as follows: [paras 11 – 22] “I remember that when we first went in, there was the midwife, me and Gina there. However various other people came in whilst I was there. I remember the midwife talking to Gina. She moved around but was at the foot of the bed a lot of the time. Gina was asked to push and everything seemed to be going normally. She was hooked up to various monitors. You could see the vagina opening and something coming through which I am pretty sure was the head as I remember that the midwife placed a foetal scalp monitor onto what appeared to be the head. Then, all of a sudden, “all hell” seemed to break loose. I remember the midwife telling Gina that the baby was stuck at that point. She called for help and other people came into the room. There was general panic and everything was frantic within the room. The midwife was pulling on the baby to try to get the baby out and as she was doing so, Gina was being pulled down the bed even though she was a large woman, weighing about 16 stone. The midwife asked me to hold onto Gina to stop being pulled down the bed, at that point, so I leant over her and put one hand on each side of her upper chest near her shoulders and tried my best to hold her down on the bed. However, it was really not at all easy to hold Gina down still due to the force that the midwife was applying. She was pulled down the bed a few times because I remember having to pull her back up the bed a few times. Someone was pulling from the front end whilst I was helping to hold Gina still. As I was doing this I was facing Gina so could not see what the midwife was doing but I could still feel Gina being pulled down the bed by the forceps she was using to pull the baby out. The midwife was shouting at Gina to push at the same time. I recall that there was a man, who had come into the room, holding on to the bottom half of Gina. Though I was looking up towards Gina’s head at this point, I could feel her being pulled down the bed due to the force that was being used. It was clear that the baby was not coming out easily. There had been lots of pulling and I could detect from the conversations going on around me that they were having great difficulty pulling Stevie out. At no point did I see anyone put their hand onto Gina’s stomach or abdomen to assist the birth. I know that Gina had an episiotomy. I have some recollection of them doing this so I think I was probably in the room when they did it. Before Stevie was born, I was asked to leave the room and I was ushered out as quickly as somebody could be ushered out. I was really worried as everyone seemed to be out of control and there did not appear to be any organisation about what was happening. I recall hearing something about the baby not breathing. I did not hear or see anything else as after I had left the room. I have had the McRoberts Manoeuvre explained to me in terms of the position of the Mother and I have looked at pictures of someone in this position. I can confidently say that Gina was never put in this position whilst I was in the room. The midwife came out very shortly after this to tell me that there had been a problem and that she thought Stevie’s arm had been broken in the delivery but that Stevie was okay otherwise. Gina was okay too. Gina was not there at the time as she was still in the delivery suite. The midwife did not say anything to me about Stevie having difficulty breathing. She told me that Stevie was being taken down to have her arm xrayed and would then be taken to the Special Care Baby Unit.”[27]I have quoted at length from the parents’ evidence, as it is a key part of the Claimant’s case. The reference in it to the McRobert’s manoeuvre is something to which I will return when considering the expert evidence.[28]Giving evidence in court was a difficult and emotional experience for both parents. The mother was in or close to tears for most of her time in the witness box. Mr Barnes took her in cross-examination to passages in her draft letter and her written statement. For example, he reminded her of what she had said in her letter and in her statement about the pulling and that there was no mention of multiple pulls in the letter, even though, by then, she had read up on Erb’s Palsy:
“Q Yet there is no mention at all of multiple pulls in that passage dealing with the birth, is there? A No, but there were multiple pulls. I cannot explain that. I may not have wrote there because I was writing scribbling that and upset. Q You would also have understood, would you not, that multiple pulls on the head would have been something that was important with regard to Erb’s Palsy? A Yes, I understand that now. Q You would also have understood it at the time as well because you read the literature? A Yes, it is explained. Yes.”
A Yes, it is explained. Yes.”[29]Mr Barnes moved on to the closely related topic of what her husband was doing at the time of the pulls. He reminded her of the relevant passages:
“Q They are very different, are they not? A They can be different or they can be the same. It depends on how, again, I had been writing it. When I felt – looking back now it seems like he was leaning over me, but I cannot really recall if he was holding me. I felt like he was leaning over me with his weight. Q If he had been asked to lean over you and put his weight on you to prevent you moving down the bed, you would have written that in the letter, would you not? A Again, I do not know. It is a long time ago. I was scribbling it and crying, and when people have asked me questions you try and think exactly how it is or difficult.”
[30]Towards the end of her cross-examination, Mr Barnes asked her about Mr Watts’ presence in the delivery room and she confirmed that it was her recollection that he had been asked to leave the room at some stage:
“Q Was Mr. Watts present at the point that Stevie was born? A Yes. Q And did he remain in the room with you when Stevie was having her airways cleared and then given to you? A I just cannot remember all that.”
A I just cannot remember all that.”[31]In cross-examination, Mr Watts confirmed his account in his statement that he was not present at the birth, but maintained that he had been present when the pulling occurred and was trying to hold his wife:
“Q My understanding is that you were not in the room when the delivery actually occurred? A No, I was not. Q You will have heard Mrs Freshwater give evidence a moment ago to the effect that you were in the room when the delivery occurred? A Yes. Q Are you able to explain the difference? A No.”
I then asked a question:
“Q Can you give me any idea as to how long it was from the time you were asked to leave the room to the time you were aware that the baby had been born? A It seemed for ever, it really did. It seemed a long time, that is all I can say. I would be lying if I said it was 10 minutes or 2 hours. I just can remember it being a long long time. Obviously I had been at the birth of the two before. At that point I was ushered out of the room when all seemed to go mad and I was literally – I mean the words there do not justify what happened when I was pushed out of the room. Q Were you given any explanation as to why you had been asked to leave? A No. Again it does not take a lot of brains to realise that the baby was stuck for me as a layman really. I was obviously helping with what I was being asked to do, hold my wife down, and then they called for somebody else and then it was pandemonium. For me I had been in a birthing room where things had gone on and it was calm and collected and everything else when things were done. Because one of my other baby’s was taken away with breathing difficulties and it all went like clockwork. This just did not seem clock work at all. As I say I was pushed out of the room. So I did not know what was happening.”
Q Are you able to explain the difference? A No.” Q Were you given any explanation as to why you had been asked to leave?

Observations on the Evidence of the Parents

[32]The parents have lived with what happened to their daughter at birth for over twenty-three years. The effect of that on them is incalculable. They must have relived their experience many times over the years, and there is a danger that events can seem even more real and vivid with the passage of time. Mr Watts, asked about his recollection by Mr Barnes, said “Well there are things in my life I can remember as if it was this morning, some things I can remember, some things I cannot, but what is in my statement is what I can remember.” The problem is that one’s initial memory can over time become encrusted with additional detail which morphs into it.[33]The sincerity and honesty of the parents has not been doubted. What has been questioned is the accuracy of what they now recall. The mother’s account as to the pulling goes much further than her draft letter written much closer in time to the events. The letter runs to ten handwritten pages. There are a number of places where she has underlined things or altered the wording. She, clearly, went to a lot of trouble in the composition of the letter, even though it was never sent. It is, therefore, somewhat surprising that she made such brief reference to what is now a central part of the case, especially given the research she had done into Erb’s Palsy.[34]There is also inconsistency between the parents’ accounts as to the presence of the father and the stage at which the pulling occurred. His recollection is that he was told to leave the room some time before the birth and did not return. The mother, on the other hand, recalls him leaving and returning, and describes the pulling as taking place then with her husband holding her to stop her sliding down the table.[35]I think the mother must be mistaken in her recollection as to the presence of the father at the time of the birth. It seems to me to be much more likely that he would be asked to leave when Sisters Gleeson and Clairmont arrived and decided to carry out an episiotomy. If this is right, it follows that the pulling described by the father happened earlier. A difficulty in that scenario, though, is that according to the labour notes, the vertex only became visible at 15.35 – in other words until then there would be nothing to pull on to deliver the baby - and between then and 15.38 help had been summoned, and the baby delivered by Sisters Clairmont and Gleeson.[36]Mr Wheatley relies on the mother’s recollection of being told by a midwife after the birth that they had really had to pull the baby out because she was stuck, something she specifically mentioned in the draft letter. He suggests that this unguarded comment is supportive of the Claimant’s case that excessive and injurious force was used. Midwife Ridgway and Sister Gleeson both say that they would never have made such a remark. As they have no recollection of the delivery, little weight can be placed upon that, but the danger in the mother’s evidence as to what was said, is of a casual remark made in simple terms to a mother in a highly charged situation just after a traumatic and difficult birth being misunderstood and acquiring undue significance.[37]The parents’ evidence must in my view, be treated with caution, and its reliability assessed in the context of the evidence as a whole. That includes the evidence of the expert witnesses, Miss Chaliha for the Claimant and Mr Tufnell for the Defendant.

Practice and Procedure

[38]By 1993 Stoke Mandeville had a protocol for dealing with cases of shoulder dystocia. Felicity Ashworth was appointed to the post of consultant in obstetrics and gynaecology at the hospital in 1991, and she developed and introduced a delivery suite protocol for shoulder dystocia in consultation with the midwifery lead, Sister Clairmont. Twenty-three years later Ms Ashworth is still in post at the hospital. She gave brief evidence before me about the purpose of the protocol.[39]The protocol reads:
“SHOULDER DYSTOCIA This is unexpected and traumatic to both mother and foetus. If it occurs: The Registrar must be summoned immediately and extra help Place patient in lithotomy position The lithotomy position is one in which the legs are raised from the thighs and usually held in place by means of stirrups. if possible. Should she not be in this position, there is usually no time to do so, and so she should be put in the left lateral position. An alternative is to lift the legs, flex the hips well back and split the bed. Wide episiotomy should be performed and the baby’s head depressed in a backwards direction with suprapubic pressure given by an assistant to try and get the anterior shoulder underneath the symphysis pubis. Too much traction and lateral flexion may well damage the brachial plexus. If this fails, a hand should be put in the vagina posteriorly and the posterior shoulder swept forward underneath symphysis. The opposite hand may then be inserted and the foetus rotated in the opposite direction to deliver the second shoulder. If this fails, unilateral cleidotomy Cleidotomy – surgical division of the clavicles to effect delivery of a foetus with broad shoulders can be considered. For this procedure the clavicle is cut with a pair of scissors and broken with the fingers. Immediate paediatric, surgical or thoracic opinion should be sought.”
This is unexpected and traumatic to both mother and foetus. If it occurs: The Registrar must be summoned immediately and extra help

Place patient in lithotomy position

[40]The protocol is significant in the context of this case in a number of ways. Firstly, Sister Clairmont helped to draft the protocol. As one of its authors, not only would she be familiar with it, she could reasonably be expected to follow it. Secondly, according to the labour notes, the mother was already in the left lateral position when shoulder dystosia occurred. Thirdly, the notes indicate that Midwife Ridgway took the immediate step, in accordance with the protocol, of summoning help. Fourthly, according to the notes, the action taken by Sister Gleeson and Sister Clairmont was to perform an episiotomy and apply suprapubic pressure. These are specific steps referred to in the protocol.[41]The objective in changing the mother’s position and applying suprapubic pressure is to try and relieve the blockage that is preventing the anterior shoulder from descending. In this case, according to the notes, the baby was delivered only three minutes after help was summoned.[42]It is far from clear what, if any, role Dr Coker performed at the delivery, and he has no recollection of it. This made it difficult for him to give any useful evidence, but I regret to say that I still found him to be a distinctly unimpressive witness. He appeared to have little, if any, knowledge of the protocol, or to attach much significance to it. I asked him at one stage what was the point of the protocol? He replied – “I suppose it was a guide to, or a document that if you needed to refer to it, you would know where it was and refer to that.”[43]Guidance notes and practice protocols were, apparently, in their infancy in the 1990s, and I get the impression from the evidence of Dr Coker and from the Defendant’s expert witness, Mr Tufnell, on this aspect, that there was some reluctance within the medical profession at the time to the prescriptive approach of guidelines and protocols, as an interference with professional independence and judgment.[44]Before I come to the expert evidence and my findings and conclusions, it is important to set out the legal framework in which these matters have to be considered.

The Law

[45]The relevant legal principles were established by the cases of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, and Bolitho v City & Hackney Heath Authority [1998] AC 232.[46]The fundamental point to have at the forefront of one’s mind is that the issues are to be judged by the standards that applied at the time – i.e. twenty-three years ago in 1993 – and not by the standards of today. You must not look with 2016 spectacles at what happened in 1993 To adapt the words used by McNair j. in Bolam .[47]The test to be applied in a claim for clinical negligence against members of the medical profession, be they doctors, midwives, or nurses, is the standard of the ordinary skilled man or woman exercising and professing to have that special skill.[48]In applying the test: i) The standard by which the individual doctor, nurse or midwife is to be judged is the standard of a reasonably competent doctor, nurse or midwife carrying out the functions expected of him or her in the delivery suite of a general district hospital maternity unit. These propositions appear in the judgment of McNair J. in Bolam at p587-8, as extracted by Haddon-Cave J. in Mohammad Fezan Sardar v NHS Commissioning Board [2014] EWHC 38 (QB) ii) It is sufficient if that person exercises the ordinary skill of an ordinary competent person exercising that particular expertise. iii) The person is not negligent if he or she has acted in accordance with a practice accepted as proper by a responsible body of medical people skilled in that particular area of practice.

The Expert Evidence

[49]The expert orthopaedic evidence comprises reports and a joint statement from Mr Christopher Constant for the Claimant and Professor Giddins for the Defendant.[50]I did not hear from either expert as Mr Constant’s opinion in the following terms is agreed:
“The Claimant suffered a birth injury to her right upper brachial plexus affecting the fifth and sixth cervical nerve roots as they emerge from the cervical spine to become the upper proximal part of the brachial plexus. This is known as Erb’s Palsy and the condition is consistent with the application of excessive traction during delivery.”
[51]I did hear evidence from the parties’ gynaecological and obstetrics experts, Ms Chaliha for the Claimant and Mr Tufnell for the Defendant. One thing on which they are both agreed is that if the court were to accept the mother’s evidence, multiple strong pulls, as she describes, without the use of alternative manoeuvres would have been unacceptable even in 1993 See Mr Tufnell’s answer to Qu 12 in the note of the joint meeting .[52]On a significant range of other matters, though, the experts were unable to agree. Mr Wheatley, in his closing submissions makes a number of criticisms of Mr Tufnell – for example that he inaccurately stated in his report that the protocol had been devised by Sisters Clairmont and Gleeson, and that there was an interval of some hours between the abdominal examination at 15.00 and the vaginal examination of the position if the baby’s head at 15.35 – but those criticisms are relatively minor compared with the level of criticism levelled by Mr Barnes against Ms Chaliha.[53]In his closing submissions, Mr Barnes made a number of serious criticisms of Ms Chaliha. I quote below from his written submissions (the references are to the relevant pages of the transcript of Ms Chaliha’s evidence): i) She undertook to provide expert evidence in respect of a shoulder dystocia in 1993 in circumstances where she had no experience of managing a shoulder dystocia until 1998 [180]. ii) She failed to supplement that knowledge by reference to any textbook other than a single textbook published in the UK, and accepted “on reflection” that she should have done more [186]. iii) She failed to give a balanced opinion in her report. For example, she felt that it was necessary to apologise for failing to recognise in her report that the policy [protocol] was reasonable [206]. iv) She was evasive and prolix in the face of difficult questions, for example her response to the issue of whether the fact that clinicians were pulling harder during difficult deliveries in 1993 was consistent with the guidance available at the time [198 - 204]. v) She made unjustified criticisms in her report, for example, in her report, at paragraph 140, she asserted that the note in the summary of labour as to the position of the foetus at delivery was unclear, but accepted in cross examination that it was clear and she should have recognised that in report, even if she doubted the accuracy [258 - 259]. vi) She made several unjustified and unexplained attempts to change her opinion in favour of the Claimant at trial: a) She stated in cross examination for the first time that she did not accept that propulsion is a legitimate explanation for some brachial plexus injuries [210], and that although this was an issue that went to the heart of the case [211], she had not expressed that opinion before [214], despite having held it for the last six months [215], she failed to give any detailed reason for that opinion [215], and ultimately she did not stand by it [228]. b) In her report, at paragraph 132, and in the joint report at question 8, she defined a severe shoulder dystocia as one where routine forces are not sufficient to release the shoulder, and yet in evidence in chief she went further and described a severe shoulder dystocia as one in which there and been a failure of routine forces together with manoeuvres. She recognised the significance of the change in position, but was not able to give an adequate explanation for it [233 – 237]. c) In her report, at paragraph 145, she recognised that restitution occurs in shoulder dystocia, but may be less obvious. In cross examination, she asserted that restitution does not occur until the anterior shoulder is released [260]. She would not accept that she had changed her opinion, but was not able to give an adequate explanation as to why she had not set out her opinion in her report or the joint report, or provide any support for her opinion [261 – 270]. vii) She appeared not to understand the relevant anatomy. Despite accepting that where a posterior shoulder injury occurs, it occurs without the knowledge of the team managing the delivery [230], she criticised the team for not identifying it at paragraph 132 of her report and question 23 of the joint report. When this was put to her, she was not able to provide a consistent and coherent answer [238 – 244]. viii) She appeared not to understand the basics of managing shoulder dystocia. For example, she was very clear that suprapubic pressure should be applied to the pubic symphysis [246 – 247]. As explained by Mr Tufnell [287 -289], this would not be in accordance with the RCOG 2012 guidelines, which require pressure to be applied above the pubic symphysis on the anterior shoulder, and would not meet the standard necessary to pass the RCOG examinations.[54]These are serious criticisms, but I regret to say that they are justified.[55]I found Ms Chaliha to be a distinctly unimpressive witness, with a serious lack of knowledge of clinical practice in 1993 and a worrying lack of appreciation of the importance of basing her opinions by the standards pertaining at that time.[56]In her report, in considering the standard of care in 1993, Ms Chaliha referred only to one textbook, an American publication, Williams Obstetrics (19th Edition 1993). Williams describes shoulder dystocia as incapable of prediction and of having potentially devastating complications. It emphasises that minimising delay in delivering the baby is of great importance to survival, and advises against over vigorous traction or rotation of the head. It goes on to detail the McRobert’s manoeuvre The McRobert’s manoeuvre consists of sharply flexing the legs back upon the woman’s abdomen. It is intended to straighten the sacrum relative to the lumbar vertebrae with accompanying rotation of the symphysis pubis towards the patient’s head and a decrease in the angle of pelvic inclination . This appears to have been developed first in the University of Texas hospital in or about 1983 and later tested in the United States in 1989 objectively using laboratory pelvic and fetal models.[57]In her report, basing herself solely on the one textbook, Ms Chaliha felt able to describe the manoeuvre as well recognised and described in the literature. It was central to the Claimant’s pleaded case. The Particulars of Claim specifically alleged breach of duty by failing to place the mother in the McRoberts position. Reference to it was, also, included in the parents’ witness statements.[58]As both Ms Ashworth and Mr Tufnell (who was a Senior Registrar at the time and about to take up his first consultant’s post) said in evidence, the McRoberts manoeuvre had not been adopted in this country in 1993. Asked why she referred only to Williams, Ms Chaliha gave the astonishing answer that it was the only textbook she had readily to hand. In cross-examination:
“Q So you satisfied yourself as to the standard to be applied by reference to a single textbook from the United States? A I was aware that there would be other textbooks that would deal with this in different ways. The one I had got hold of was just the Williams…”
[59]It is apparent from other answers she gave that she was aware of UK published textbooks, such as Dewhurst. The 5th edition published in 1995 makes no reference to the McRoberts manoeuvre. It advocates the making of a large episiotomy and the use of the lithotomy position if possible (in line with the hospital’s protocol), and emphasises that time is of the essence if the baby is to be saved and that although it describes the use of a firm attempt to rotate the fetal head, it advises against excessive rotation or traction.[60]Another UK textbook current in 1993 was Chamberlain, Dewhurst and Harvey (2nd Edition 1986). It says:
“Immediate and vigorous management is then required. The first manoeuvre is to place the woman in the lithotomy position and perform an episiotomy if one has not already been done. The fetal head is then carried backwards towards the anus and suprapubic pressure is applied by another attendant in order to thrust the anterior shoulder into the pelvis. Although considerable force may be required, this is often successful, however overstretching the brachial plexus giving rise to an Erb’s palsy is a risk…..A brachial plexus injury will usually heal well and is clearly preferable to a stillborn child.”
[61]The approach adopted by Ms Chaliha to what was a fundamental part of her report was, in my judgment, unbalanced and highly misleading. The misfortune of such an approach is that it may provide a claimant with an unrealistic hope of success or fatally weaken what might otherwise be a valid claim had the expert’s report been thoroughly researched and presented.[62]There are other features in Ms Chaliha’s report and evidence which appeared to demonstrate a worrying lack of understanding of some of the basic anatomical principles.[63]During her evidence she gave a demonstration of how to apply suprapubic pressure. In so doing, she applied it not to the suprapubic area but to the pubic symphysis itself. This would have the opposite effect to what was intended. When questioned about her evidence on restitution Restitution is the process by which the head of the baby turns after delivery to its normal position in relation to the shoulders , she appeared to be saying that restitution of the baby’s head did not occur in cases of shoulder dystocia, whereas in her report she had accepted that it does occur but may be less obvious. In relation to obstruction of the posterior shoulder, she appeared in her report to be critical of the team for not identifying the problem but had to admit during cross-examination that this was not possible until the anterior shoulder was delivered. I sought during cross-examination to clarify her evidence on this point:
“Q Is not Mr Tufnell right, that if the posterior shoulder obstruction had occurred before birth of the head, then the delivering midwives would not be aware of that and it would not be counter-intuitive to apply pressure if it was to release the anterior shoulder? A Yes, my Lord, what, in that situation would happen is that the head would deliver, with downward traction, because the anterior shoulder would not be impacted because it would not be the issue. Q But you appear to be criticising there, in a situation where it would be outside the knowledge of the delivering midwives? A Yes. It would not be routine to look for a posterior shoulder impaction.”
A Yes. It would not be routine to look for a posterior shoulder impaction.”[64]It is a basic duty of any expert witness, in accordance with Part 35 of the Civil Procedure Rules, to maintain independence and objectivity. Experts must not take it on themselves to promote the point of view of the party instructing them or engage in the role of an advocate. Miss Chaliha did not, in my view, properly observe that fundamental requirement. Instead she chose to ignore or play down matters that were inconvenient to her assessment of the case.[65]A further duty owed by all expert witnesses is that if, for any reason, they change their opinion they are under a duty to inform those instructing them without delay.[66]Essential to Ms Chaliha’s assessment of the case is that the right shoulder was the anterior shoulder and that the record made by Midwife Ridgway on delivery was wrong. If the right shoulder was posterior and the record accurate, excessive traction during the delivery of the anterior shoulder could not account for the injury.[67]Relying on the accuracy of the record and the rapid labour, Mr. Tufnell expressed the opinion that the brachial plexus injury was the result of the pace of labour. At the time of the experts’ meeting in June 2016, Ms Chaliha did not challenge that propulsion forces can be a cause of injury to the posterior shoulder.[68]Under cross-examination though, she said that she did not accept propulsion as a legitimate explanation. Knowing as she did the basis of Mr. Tufnell’s opinion, she was unable to explain why she had not said so before, even though she said that she had held that opinion for the last six months – i.e. it pre-dated the expert’s meeting.[69]Mr Barnes took her to the paper published in 2008 by Draycott, Sanders, Crofts and Lloyd Clinical Risk 2008; 14: 96 - 100 . This provides a template for reviewing the strength of the evidence for obstetric brachial plexus injury in clinical negligence claims and considers cases of propulsion injury. The paper includes this paragraph:
“The posterior shoulder theory suggests that the injury occurs when the posterior shoulder is caught on the sacral promontory and the uterine forces continue to push the baby down the birth canal which may stretch the fetal brachial plexus. This is recognised in a recent UK medicolegal review: this (a posterior shoulder injury) is not due to any negligent action of the accoucheur, whereas an anterior shoulder injury may be due to the negligent action of the accoucheur.”
[70]When confronted with the paper, Ms Chaliha, finally, appeared to accept that maternal forces could account for permanent brachial plexus injury.[71]This is something that is now well-recognised in the literature For example - Evans-Jones et Al – Congenital brachial palsy: incidence, causes and outcome in the United Kingdom and Republic of Ireland – 2003, Gonik – Mathematic modelling of forces associated with shoulder dystocia. A comparison of endogenous and exogenous sources – 2000, and the Draycott paper. , by the Royal College of Obstetricians and Gynaecologists Green-top Guideline No 42 – Shoulder Dystocia – 2nd Ed March 2012 , and in decided cases See Croft v Heart of England NHS Foundation Trust [2012] EWHC 1470 (QB) – Hickinbottom J., and Sardar v NS Commissioning Board (referred to in the body of the judgment) . The Royal College paper includes the following:
“Neonatal BPI (brachial plexus injury) is the most common cause for litigation related to shoulder dystocia and the third most litigated obstetric-related complication in the UK. The NHSLA (NHS Litigation Authority) has reported that 46% of the injuries were associated with substandard care. However, they also emphasised that not all injuries are due to excessive traction by healthcare professionals and there is a significant body of evidence suggesting that maternal propulsive force may contribute to some of these injuries.”
Background, p2[72]In stark contrast to the evidence of Ms Chaliha, Mr Tufnell was clear, concise and robust both in his report and his evidence. His opinion remained consistent throughout. I have no hesitation in preferring his evidence to hers.

Findings and Conclusions

[73]In the case of Mohammed Fezan Sardar v NHS Commissioning Board(see above), Haddon Cave J. cited with approval a further passage from the conclusion to the Draycott paper as best summarising current medical thinking:
“Causation of obstetric brachial plexus injury is multifactorial: evidence suggests that while some cases are traction mediated, others may not be. There is a growing acceptance in both 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.”
[74]Mr Wheatley seeks to found his case on the parents’ evidence. He submits, in the light of their evidence, that the reasonable inference is that once the midwife established that the baby wasn’t coming out, there was panic and repeated pulls on the baby’s head. As the right shoulder was damaged at birth, he submits, that it is likely to have been in consequence of the midwife’s excessive traction and therefore the right shoulder is likely to have been anterior and not posterior.[75]I am unable to accept that line of reasoning.[76]I have set out above my reservations on the parents’ evidence and will not repeat them. It is a question of considering whether the evidence fits in with the closely contemporaneous records and the rest of the evidence, a vital part of which is the recording that the right shoulder was posterior and came out after the left shoulder.[77]I can see no legitimate basis for concluding that the position of the shoulder was wrongly noted as ROA at delivery and that the right shoulder was anterior and not posterior. I say that for the following reasons: i) As Mr Tufnell explained in his evidence, forming an opinion as to how a baby is positioned in the womb from an external abdominal examination is not easy, particularly in the case of a mother with a large body mass. It is not uncommon to find on delivery that the position of the baby is different from what had been recorded earlier on abdominal examination. A baby that is thought to be in a cephalic position on abdominal examination can even turn out on delivery to be a breach birth. The foetus may also change position between the abdominal examination and delivery, although that is unlikely in this case. ii) In both the vaginal examinations, at 15.15 by Midwife Ridgway and 15.30 by Sister Gleeson, the position of the baby was described as “not defined”. Although they confirmed that the presentation was cephalic, neither examination confirmed the abdominal examination as to the position of the foetus. The fact that it was not possible to define the position of the foetus is an indication of the difficulty in making an accurate assessment. iii) The assessment of the position of the foetus at delivery once the vertex has started to emerge is much more likely to be correct, as the emergence of the top of the head and the process of restitution assists the accoucheur to make an accurate assessment; iv) Here by that stage three midwives were involved at the delivery, two – Sisters Clairmont and Gleeson delivering the baby, and Midwife Ridgway applying suprapubic pressure. Midwife Ridgway had to stand to the side of the mother to apply the pressure appropriately. She needed to know how the baby was positioned to do this. It is most unlikely in the circumstances that the position of the baby was wrongly recorded as ROA. v) It was suggested to Mr Tufnell by Mr Wheatley in cross-examination that LOA is the most common position at birth. Whilst Mr Tufnell accepted that LOA is probably more common than ROA, his evidence was that the ratio is around 60/40. It, therefore, provides no basis for questioning the accuracy of the entry in the notes.[78]I find that the right shoulder was posterior and not anterior and that the brachial plexus injury is likely to have been caused by maternal propulsion in what was an extremely rapid delivery after labour had been induced, and not caused by excessive traction.[79]Even if I had found that the right shoulder had been anterior, I would still have found that it was impossible on the evidence to conclude that the injury was more likely than not to have been caused by excessive traction. As the authors of the Draycott paper observe, the assumption that presence of injury is evidence by itself of excessive traction is not valid.[80]The matter must be tested by the standards in 1993. These were significantly different from those that apply today: i) There was no clear guidance as to the level of force that was appropriate in the textbooks currently in use. Chamberlain stated that “considerable force may be required”. In 1995, Dewhurst advised against “excessive traction”, and Williams recommended avoiding “overly vigorous traction”, but at what point the traction becomes excessive or overly vigorous was not explained. ii) Research carried out in 1991 Risk Factors for Shoulder Dystocia: An Engineering Study of Clinician-applied Forces; Robert Allen - Obstetrics and Gynaecology 1991 Vol 77 No 3 March found that a peak force applied by a clinician was about 47 Newtons (N) during a routine delivery, 67N during a difficult delivery, and 100N when there was shoulder dystocia. iii) Ms Chaliha accepted in cross-examination that “at the very least, clinicians on a regular basis applied more traction then in 1993 than they would now.” Mr Barnes put to her:
“Q I know it is difficult, but if you apply the standards of 1993, you would not be critical, would you, if a clinician unwittingly, applied more force than they thought they were? A No.”
Mr Tufnell, whilst accepting that it would be contrary to all teaching to pull repeatedly and excessively added:
“unfortunately the difficulty for clinicians then, and to a lesser extent now, is that there is no mechanism by which you can judge your force. There is not a strain gauge on the baby. There is not something on the wall which tells you you are pulling too hard. You have to make a clinical judgment.”
A No.”[81]Whilst I accept the parents as genuine and sincere, I do not accept their evidence on the force that was used to be accurate and reliable. On all the evidence, I am not persuaded that excessive pulling or traction was used at any stage of the delivery. As soon as Midwife Ridgway encountered difficulty in delivering the shoulders she summoned help, and appropriate steps were taken by Sisters Gleeson and Clairmont to deliver the baby with the minimum of delay.[82]In the result, therefore, the claim fails and is dismissed.

Postscript

[83]This has been an anxious and traumatic case for all involved. Even though, I have dismissed the claim, I want to express my sympathy to the parents and, in particular, to the Claimant herself. This has been an ordeal for them over a long period of time. The deep emotion showed especially in Mrs Freshwater when she was in the witness box. I realise that they and their daughter will be disappointed by the outcome.[84]Stevie gave brief evidence at the start of the hearing, to demonstrate to me the restriction of movement in her right arm and shoulder. She sat in court throughout the trial, taking a keen interest in the proceedings. She behaved impeccably throughout even though it must have been immensely difficult for her to sit there whilst the circumstances of her birth were examined in such close detail.[85]Finally, I am grateful to both counsel for their able and skilled assistance throughout the hearing and their excellent closing submissions.