Neutral Citation Number: [2014] EWHC 38 (QB)
Case No: 0MA90436
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Manchester District Registry

Date: 16/01/2014

Before:

MR JUSTICE HADDON-CAVE
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Between:

	MOHAMMED FEZAN SARDAR	Claimant	
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	NHS COMMISSIONING BOARD	Defendant	

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Nigel Poole QC (instructed by Pannone LLP) for the Claimant
Stephen Miller QC (instructed by Hempsons Manchester) for the Defendant

Hearing dates: 21-25 October 2013
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic

Mr Justice Haddon-Cave

MR JUSTICE HADDON-CAVE:

INTRODUCTION 

1.	This is a clinical negligence claim for injuries suffered at birth. It raises issues about the true causes of shoulder dystocia.  

2.	The Claimant, Mohammed Fezan Sardar, now aged 24, was born at Birch Hill Hospital, Manchester on 23rd October 1989. He was delivered at about 7 a.m. by the obstetric Registrar, Dr Ali Abu-Shehewa (“Dr Ali”). He was assisted by the Midwife, Mrs Pauline Bickerdike (“Midwife Bickerdike”), who had looked after the Claimant’s mother from admission on the previous evening. Immediately following delivery, the baby was in a poor respiratory condition but responded quickly to standard resuscitative measures.  Dr Ali recorded in his notes “difficulty in delivering the shoulder”. The baby was very large: it weighed 11lb 11oz at birth (5.3kg).

3.	The Claimant was diagnosed as having suffered at birth a severe Grade 4 right-sided brachial plexus injury ("BPI"), leaving him with permanent Erb's palsy and a significant loss of function in the right arm, and Horner's syndrome, a right-sided palsy affecting the eyelid and pupil. 

4.	A claim was not lodged by the Claimant’s parents in respect of his birth. On his majority, however, the Claimant brought a claim in his own name. By these proceedings, the Claimant contends that his injuries were caused by the negligence of the NHS hospital staff, principally in applying excessive forceps traction during delivery following the encountering of shoulder dystocia. 

5.	The Defendant (“the Hospital”) denies the allegations and denies negligence. The Hospital contends that the Claimant’s right shoulder was posterior on delivery and injured as a result of impact with the sacral promontory prior to delivery and not the application of excessive traction during delivery. Alternatively, the Hospital says that if the Claimant’s right shoulder was anterior on delivery, the traction applied was no more than reasonable.

6.	The Claimant originally claimed damages of over £1,142,000.  Quantum has now been agreed between the parties at £450,000, subject to liability. A trial on liability took place before me with factual and expert witnesses. This is my judgment on liability.

MEDICAL BACKGROUND

Shoulder dystocia

7.	I gratefully adopt Hickinbottom J’s helpful and lucid summary in Arthur Croft v. Heart of England NHS Foundation Trust [2012] EWHC 1470 (QB) of how shoulder dystocia occurs during childbirth and the mechanics and dynamics involved. For convenience, I respectfully cite the following paragraphs of his judgment in full below:

"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 symphysis 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 episiotomy. 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 head 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.”

THE FACTS 

8.	Labour is traditionally divided into three stages: (i) the First Stage, when the cervix is dilating with regular contractions and the fetal head begins to descend in the pelvis; (ii) the Second Stage, when the cervix is fully dilated and the mother is encouraged to push the baby out; and (iii) the Third Stage, after the baby is born where the placenta is expelled or removed by the accoucheur. 

First Stage of Labour 

Admission Note
9.	The Claimant’s mother, Mrs Gulshan-Sardar (“Mrs Sadar”), was admitted to Birch Hill Hospital, Manchester, at about 22.15 hours on 22nd October 1989.  Midwife Bickerdike was on duty and assigned to Mrs Sardar. Midwife Bickerdike’s contemporaneous notes recorded as follows:

	“History of contractions since 14.00 h.
	
	VE [vaginal examination] 
	Cx[cervix] soft, partially effaced
	[cervical] os 4cms dilated, loosely applied to
	PP [presenting part] ↑[above] level of the Ischial Spine
	Abdominal examination
	Fundus at term, large baby
	Single fetus. Long[itudinal] lie, cephalic [head down] 
Presentation 3/5ths palpable, “ROA” [right occipito anterior] 
FHH Reg [fetal heart heard regular]” 

10.	The Claimant has challenged the accuracy and reliability of Midwife Bickerdike’s entry “ROA” (i.e. “right occipito anterior”) in her notes (highlighted above). The Claimant argued that the baby’s head on admission was in fact “LOP” (i.e. “left occipito posterior”) on admission and that Midwife Bickerdike mistook or mis-recorded the baby’s position. The accuracy of this note was the key issue in the case. (A useful diagram provided by counsel for the Claimant, Mr Nigel Poole QC, with his skeleton illustrating the range of possible positions of a baby during birth; a copy of this diagram, entitled “The Fetal Compass Rose” (2004),  is appended to this judgment as Appendix A to assist the reader.)

11.	At 23.15 hours, Mrs Gulshan-Sardar was given pethidine for pain relief and something for gastric irritation. 

Second vaginal examination
12.	At 01.45 hours, Midwife Bickerdike carried out a second vaginal examination.  Dilation of the cervix was noted to have increased to 6 cms. The membranes of the amniotic sac were noted to be bulging, so Midwife Bickerdike carried out an artificial rupture of the membranes (“ARM”). The increasing dilatation of the cervix noted during the various vaginal examinations was duly plotted in red ink on the Partogram, in order that the midwives could monitor how the First Stage of labour was progressing. 

Third vaginal examination
13.	At 03.30 hours, Midwife Bickerdike carried out a third vaginal examination.  She noted that cervical dilatation had increased to 7 cms, but was unable to define the position of head by feeling internally for the sagittal suture.  The sagittal suture is the ‘crease’ running from front to back on the top of the fetal head between the anterior and posterior fontanelles, formed by the abutting, but as yet unfused, plates of the skull. Midwife Bickerdike explained in her evidence that in a post-mature baby, the sagittal suture may be well fused, making it difficult to discern.  

14.	Midwife Bickerdike noted that the liquor (amniotic fluid) draining after the ARM was meconium stained, which potentially indicated fetal distress. For this reason, and because she felt that the baby was likely to be large, Midwife Bickerdike contacted the on-duty obstetric registrar, Dr Ali. She was instructed by Dr Ali to continue to observe and to inform him if no progress was made.

Fourth vaginal examination
15.	At 04.55 hours, Midwife Bickerdike carried out a fourth vaginal examination.  There had been slow progress. But she noted that the cervix was almost fully dilated.  She was again unable to define the position of the baby’s head.  At 06.30 hours, full dilatation was confirmed (although the time of this entry and some following entries were incorrectly recorded as being an hour later but nothing turns of this). 

16.	Another midwife, Midwife Stott, made the following notes:

	At 05.55 hours: “Not pushing effectively. Patient complaining++ but will not accept advice to push properly.”													
	At 06.10 hours: “Dr Ali contacted re lack of progress 2nd stage.  Says he will visit in 15 mins.”

	At 06.20 hours: “Patient complaining++  and refusing to push any more.” 

Second Stage of Labour 

17.	At 06.35 hours, Midwife Bickerdike recorded that the Claimant’s mother was seen by the Registrar, Dr Ali, and started on syntocinon. Mrs Sadar was also prepared for forceps delivery. Midwife Bickerdike explained that this meant that a trolley was prepared with the appropriate forceps, a syringe of lignocaine for the episiotomy, instruments for that procedure and anything else which the doctor might require. In addition, the bottom of the bed would have been dropped for access and the mother’s legs would have been put in lithotomy stirrups. As a matter of routine, a paediatrician would also have been asked to attend, because there was going to be an instrument delivery.  Neville Barnes forceps were to be used.

Third Stage of Labour 

18.	At 07.00 hours, Midwife Bickerdike recorded: “Forceps delivery of live male infant. Shoulder dystocia”. Others present also noted “shoulder dystocia”. Midwife Bickerdike explained in evidence that she drew no distinction in her mind between “shoulder dystocia” and “difficulty delivering the shoulder(s)” (as noted by Dr Ali). She considered the two terms synonymous.  

19.	 The position of the baby was noted by Dr Ali to be “OP” (i.e. occipito posterior), with the back of the baby’s head facing backwards. The more usual delivery position is “OA” (i.e. occipito anterior) with the back of the baby’s head facing forwards.  This should not, in itself, have made the delivery more difficult, but as Midwife Bickerdike said (and others confirmed) a small percentage of babies remain persistently “OP” and that may make the Second Stage of labour more prolonged because a ‘flexed’ “OA” head finds it easier to negotiate the birth canal than a ‘deflexed’ “OP” head.

20.	Dr Ali recorded the delivery in the following terms (emphasis added):

	“Barnes Forceps delivery
	 For delay in 2nd stage

	Cervix fully dilated “OP”
	Forceps blades applied easily, the head delivered within 2 contractions.
	There was difficulty in delivering of the shoulder which delivered with difficulty.
	Placenta and membranes delivered complete....
	
	NB baby weight 11.11
	     Mother was not cooperative at all during labour and delivery.”
	
21.	The Claimant does not dispute the accuracy of Dr Ali’s record that the baby was delivered in the “OP” position.  This can, therefore, be regarded as a fixed point.

22.	A junior paediatrician present at the birth because it was an instrument delivery recorded as follows (emphasis added):

“Called to delivery
-	Forceps for failure to progress
-	Meconium stained liquor
-	Shoulder dystocia, difficulty delivering of head, body born at 4 mins
-	V large baby
-	Apgar5 at 1 min
-	Suction or oro/nasopharynx +larynx
-	Given O² via IPPV with good effect
-	Required further suction→meconium stained liquid seen coming from below cords
-	Apgar 9 at 5 minutes
-	Chest – good A[ir] E[ntry] few moist sounds, Apgar 10 at 7 mins
-	Moaning 
→to SCBU  [Special Care Baby Unit]
.............
Good movements in legs and L arm
No movement in R arm, hypotonic.”

23.	The baby was delivered within two contractions, i.e. within approximately four minutes. The baby’s Apgar score of 5 at 1 minute and 9 at 5 minutes indicated that the baby had recovered quickly from the trauma of delivery.

24.	Midwife Bickerdike, who must have delivered thousands of babies during her long career, specifically recalled this particular birth because the baby was “very large”.

THE LAW

25.	The legal principles applicable to claims for clinical negligence against doctors, nurses and midwives can be summarised in the following propositions:

(1)	The test to be applied is the standard of the ordinary skilled man or woman exercising and professing to have that special skill.

(2)	It is sufficient if he or she exercises the ordinary skill of an ordinary competent person exercising that particular art.

(3)	He or she 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 art.

(4)	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.

(C.f. the leading cases in this area such as Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582 at 586-7 and Bolitho v City & Hackney Health Authority [1998] AC 232.)

26.	The relevant standards by which the Hospital’s acts or omissions are to be judged are the standards of the day, i.e. 25 years ago.  

27.	The Claimant pointed to a number of reported decisions in cases arising out of BPIs, viz. Jackson v. Bro Taf Health Authority [2002] EWHC QB 2344; Rashid v. Essex Rivers NHS Healthcare Trust [2004] EWHC 1338 (QB); Beggs v. Medway NHS Trust [2008] EWHC 2888 (QB); and Croft v. Heart of England NHS Foundation Trust [2012] EWHC 1470 (QB).  But each case turns on its own facts and evidence. 

THE WITNESSES

The Factual Witnesses

Mother’s evidence
28.	The Claimant called his mother, Mrs Gulshan-Sardar, to give evidence. I did not, however, find it possible to place any reliance on her account of the birth and care she received. Her account bore no relation either to the contemporaneous records or with any other evidence. I found her to be an unsatisfactory witness who appeared to be seeking to assist her son’s claim by being highly critical at every turn and painting the Hospital in as bad light as possible in order. Her evidence that the equivalent of fundal pressure had improperly been exerted by the midwife was so implausible that not even the Claimant’s midwifery expert (Mrs Cranna) or obstetrics expert (Mr Jarvis) suggested it could be relied on. This allegation was abandoned.

Midwife’s evidence
29.	The midwife, Mrs Pauline Bickerdike, was by contrast a highly impressive witness. She was plainly honest and doing her best to give a clear account of her practice 24 years ago and the events in question by reference to her contemporaneous notes. She qualified as a registered midwife at Birch Hill Hospital in Rochdale in 1976. She started work as a midwife in 1977. She has been continuously employed by the Pennine Acute Hospitals NHS Trust as a midwife ever since. By 1989 she already had over 10 years experience under her midwife’s belt. She struck me as utterly professional and meticulous in all her work. I accept her evidence unreservedly, in particular her evidence about the accuracy of her abdominal palpations.

30.	Dr Ali was no longer traceable, unsurprisingly, given the passage of time.  

The Expert Witnesses

Claimant’s experts
31.	In my judgment, the Claimant’s experts were neither impressive nor objective (save for Mr Bainbridge).

32.	The Claimant’s midwife expert, Mrs Cranna, seemed overly keen to find arguments to support the Claimant’s case. She sought (unfairly) to nit-pick at the care given and the quality of Midwife Bickerdike’s note-taking at the time without making any allowance for the fact that standards of note-taking etc were somewhat different 24 years ago. She sought to argue (illogically) that because Midwife Bickerdike did not confirm the fetal position by vaginal examination her initial abdominal examination was incorrect. She also sought to argue (disingenuously) that it was rare for babies to rotate from “OA” to “OP”, ignoring the fact that the fixed point in this case is “OP” on delivery (on the basis of Dr Ali’s unchallenged record) and, therefore, on a proper reading of the Gardberg paper, most (i.e. 68%) of the small (i.e. 3.7%) sub-group “OP” on delivery underwent a mal-rotation from “OA” to “OP”. 

33.	The Claimant’s obstetrics expert, Mr Jarvis, was a most unsatisfactory expert witness. He appeared to forget his duty to the Court and seemed illegitimately to stray into creative advocacy for the Claimant’s cause. He tailored his evidence to argue the case for “LOP” on admission. He sought to side-step the evidence, including Midwife Bickerdike’s contemporaneous notes. His startling premise was that Midwife Bickerdike must have been in the minority of 15% of midwives who palpate the fetal back in the wrong place, rather than in the majority 85% who get it right. He asserted that it was “really most unlikely” that the fetal position could change from “OA” to “OP” but equivocated when confronted with the clear conclusion of the Gardberg paper that the majority of “OP” babies on delivery started from “OA”. He came up with the (tortuous) suggestion that Midwife Bickerdike, having made the initial mistake of defining the position externally on admission as “ROA”, then unwittingly erroneously confirmed the “ROA” position by feeling the sagittal suture because of the unlucky happenstance that she was, in fact, feeling the ‘mirror image’” sagittal suture at 180o, i.e. “LOP”. This creative reconstruction (as Counsel for the Hospital, Mr Stephen Miller QC, rightly characterised it) ignored Midwife Bickerdike’s notes regarding each of the four vaginal examinations which do not record any confirmation of position during her four vaginal examinations, let alone any ‘false positives’. Perhaps most breathtakingly of all, Mr Jarvis’s suggested that Dr Ali should have proceeded with the delivery with less urgency and on the basis that he had at least ‘10 minutes’ in which to get the baby out, without suffering permanent brain damage. This suggestion flew in the face of common sense, as well as the views of the Claimant’s original expert, Professor Max Elstein, who advised in 1991 that the medical staff had done well to react rapidly and avoid the baby suffering significant asphyxia (see further below). Further, Mr Jarvis’s assertion does not sit easily with medical literature, viz. e.g. the Hope Paper warned that: “A relatively brief delay in delivery of the shoulders may be associated with a fatal outcome”. It should be noted that in e.g. Rashid v. Essex Rivers NHS Healthcare Trust (Supra), another shoulder dystocia case, Jack J was at pains to observe that brain damage or death from oxygen deprivation had been avoided by skill of the medical team (supra, at paragraph [25]).

34.	The Claimant’s paediatrics expert, Dr Miles, appeared all too willing to step outside his area of expertise in a manner which suggested that he, too, had forgotten his duty to the Court. He saw fit to align himself uncritically with the Claimant’s obstetrics expert on all matters. He sided with Mr Jarvis’s (incorrect) assertion that it was “most unlikely” that a fetus could rotate from “OA” to “OP”, until confronted with the Gardberg Paper. He supported Mr Jarvis’s (unproven) criticisms of the management of the shoulder dystocia. He agreed with Mr Jarvis’s (ill-judged) assertion that there was no urgency or risk of asphyxia  It was not clear why Dr Miles was giving evidence at all since there were no paediatrics issues and the Hospital was not calling a paediatrics expert.

35.	Three of the four Claimant’s medical experts appear to have forgotten their overriding duty to the Court as laid down in CPR Part 35 (and elucidated by Cresswell J in The Ikarian Reefer [1993] 2 Lloyd’s Rep 68).

36.	By contrast, the Claimant’s plastic and hand surgery expert, Mr Bainbridge, was exemplary and gave straightforward and candid evidence. He accepted with good grace that, whilst for him the concept of posterior arm injury was an unproven theory, in the final analysis, it was an obstetric question and not for him to opine upon. Ultimately, there was little disagreement between him and the Defendant’s expert, the (august) figure of Professor Stanley on injury questions.  

Defendant’s experts

37.	The Hospital’s experts, on the other hand, were uniformly impressive, impartial and helpful.

38.	The Hospital’s midwifery expert, Ms Brydon, was particularly impressive and measured and had a magisterial grasp of her subject. Unlike Ms Cranna, she had the advantage of having been in active midwifery practice from 1980 to the present day.  

39.	The Hospital’s obstetrics expert, Mr Wagstaff, was an expert of palpable integrity who volunteered that Ms Brydon had introduced him to the Gardberg paper and led him to rethink the mechanism of injury as posterior and appeared genuinely shocked at Mr Jarvis’s suggestion that the obstetric registrar would believe he had 10 minutes before the onset of brain damage. He had never heard such a view expressed before. 

40.	Professor Stanley’s peerless reputation proceeded him and he did not need to be called. 

THE ISSUES

41.	There are two basic issues in the case. The first is whether it was the baby’s anterior or posterior shoulder which was injured. The Claimant’s case is that it was the anterior shoulder which was injured (i.e. the uppermost shoulder) by impact with the symphysis pubis when the accoucheur, Dr Ali, applied excessive traction to the baby’s head and neck when trying deliver the baby’s torso, causing irreversible damage to the nerves of the anterior shoulder and arm. The Hospital’s case is that it was the posterior shoulder which was injured (i.e. the underneath shoulder) as a result of being trapped against the sacral promontory due to the natural propulsive forces exerted by cervical contractions during the passage of the fetus down the birth canal and that, therefore, the shoulder injury occurred as a result of natural causes before the baby’s head was delivered and was not the result of excessive forceps traction. 

42.	The second main issue is whether injury could only have been caused by the application of excessive force to deliver the baby’s torso during delivery as the Claimant alleged. The Hospital submitted that the injured right shoulder was posterior at birth but, in any event, even if the injured right shoulder was anterior at birth, there was no evidence of excessive traction being applied.  

43.	The Claimant deployed three essential arguments in support of his case: (i) there was an accepted error rate of 15-20% when palpating and Midwife Bickerdike had mistaken the baby’s position on admission as “ROA” when in fact it was more likely to be “LOP”; (ii) it was ‘very unlikely’ that a baby would rotate from “ROA” on admission to “OP” on delivery; and (iii) the BPI injury to the Claimant was ‘so severe’ that it could only have been caused by excessive traction, whether the injured right shoulder was anterior or posterior. 

44.	To some extent the two main issues overlapped and they are analysed together below.

Allegations not pursued
45.	The Claimant made two further allegations which were not pursued or fell away, namely the Claimant alleged (i) a negligent failure to apply supra-pubic pressure and (ii) the negligent application of fundal pressure, were not pursued or fell away. The first allegation regarding the absence supra-pubic pressure was dropped before trial following the experts’ meeting. It became plain at the trial that the second allegation of application of fundal pressure could not survive the implausibility of the Claimant’s mother’s evidence and, in the event, was not supported by the Claimant’s experts (see above). 

Claimant’s concessions
46.	The issues were simplified by three helpful (and correct) concessions made by Mr Poole QC, Counsel for the Claimant. First, the Claimant conceded that if the baby moved from “ROA” on admission to “OP” on delivery, then the baby’s uninjured left shoulder would have been anterior at birth and, accordingly, his BPI injured right shoulder would have been posterior at birth.

47.	Second, the Claimant conceded (and his midwife expert Ms Cranna also accepted) that, in 1989, midwives of experience such as Midwife Bickerdike, would generally correctly identify the position of a baby’s spine on abdominal examination more often than not. 

48.	Third, the Claimant conceded that the fact that the baby was delivered “OP” does not cast doubt on the “ROA” position noted on admission.  Mr Poole QC, accepted that the Gardberg paper demonstrated that, whilst movement from “ROA” to “OP” are generally rare, more babies born in the “OP” position started labour in “OA” than in “OP” (see below).

ANALYSIS 

Guidance from the Royal College of Obstetricians and Gynaecologists

49.	It is worth starting with the guidance of The Royal College of Obstetricians and Gynaecologists (“RCOG”) which sets out the following definition of shoulder dystocia in its Guideline No. 42 (published in December 2005):

“Shoulder dystocia is defined as a delivery that requires additional obstetric manoeuvres to release the shoulders after gentle downwards traction has failed.  Shoulder dystocia occurs when either the anterior or, less commonly, the posterior fetal shoulder impacts on the maternal symphysis or sacral promontory.” 

50.	This RCOG definition may be considered slightly circular in so far as it uses the management of the obstruction to define the nature of the obstruction itself.  

51.	The RCOG Guideline explains that statistics suggest a reported incidence of 0.6% of shoulder dystocia in North America and the UK and that brachial plexus injuries (“BPI”) complicates some 4-16% of deliveries involving shoulder dystocia, with fewer than 10% resulting in permanent injuries. In the UK, the incidence of BPI is 1 in 2,300 live births. Neonatal BPI is the single most common cause of litigation related to shoulder dystocia.

52.	The RCOG Guideline continues (emphasis added):

“Not all injuries are due to excess traction by the accoucheur and there is now a significant body of evidence that maternal propulsive forces may contribute to some of these injuries. Moreover, a substantial minority of brachial plexus injuries are not associated with clinically evidence shoulder dystocia. In one series, 4% of injuries occurred after a caesarean section. Specifically, where there is Erb’s palsy, it is important to determine whether the affected shoulder was anterior or posterior at the time of delivery, because damage to the plexus of the posterior shoulder is considered not due to action by the accoucheur.” 

Standards in 1989

53.	The standards, knowledge and techniques with regard to shoulder dystocia were significantly less sophisticated in 1989 than they are now. The 2005 RCOG Guidance includes a mnemonic “HELPERR” listing a number of steps to take when managing shoulder dystocia, including the McRobert’s manoeuvre and supra-pubic pressure. No criticisms are advanced by the Claimant in this case on the basis of failure to take any of these steps. The evidence was that the McRobert’s manoeuvre was not widely known or used in the UK in 1987. The Defendant’s midwife expert, Mrs Brydon, also gave unchallenged evidence that, in 1989, midwives were not as concerned as they might be today to determine the baby’s position at this initial stage, because it would have no bearing on the management of the First Stage of labour. The use of ultrasound during labour was less prevalent than it is now.  She further explained that standards of hospital note-taking were not as demanding as they are now.

Was the baby “ROA” on admission?

54.	The pivotal issue in the case related to the position of the baby’s head on admission. The Hospital said that on admission the baby was in the right occipito anterior position  (“ROA”), i.e. the back of the baby’s head was facing forwards on the right side. This was what was clearly recorded by the Midwife Bickerdike, in her notes at the time. The Claimant sought to argue that Midwife Bickerdike’s contemporaneous note was incorrect and the baby’s head on admission was left occipito posterior (“LOP”), i.e. the back of the baby’s head was facing backwards on the left side, and she had mistaken or mis-recorded the position.  

55.	This issue was crucial to the Claimant’s case. The Claimant had to prove the baby’s head was “LOP” on admission in order to show that the right injured shoulder would have rotated to a position where it would have been anterior at delivery and, therefore, the BPI could have been caused purely by excessive traction (rather than by impact with the sacral promontory which would have been the case if the position had started at “LOA” and rotated 135o anti-clockwise putting the shoulder posterior abutting the sacral promontory).  

56.	Thus, the case essentially boiled down to one question: Was Midwife Bickerdike correct in her assessment, using abdominal palpation, that the position of the baby’s head on admission was “ROA”? If the answer is ‘yes’, it is pretty much game over for the Claimant. If the answer was ‘no’, a second question arises as to whether the use of excessive traction force can be proved.  

57.	I am quite satisfied, on the evidence, that Midwife Bickerdike’s note was accurate and baby’s head was “ROA” on admission. There are three main reasons for coming to this conclusion.  

(1) Midwife Bickerdike’s evidence

58.	First, in my judgment, there are no reasons for doubting Midwife Bickerdike’s assessment at the time or the accuracy of her contemporaneous note which recorded the fetus as “ROA” on admission.

59.	It is inherently unlikely that a midwife of Midwife Bickerdike’s experience and meticulous professionalism would have made a mistake as to the position of a fetus when carrying out her abdominal examination on admission, still less that  she would have mis-recorded it. Her record of the fetus being “ROA” on admission was clear and unequivocal (i.e. not qualified in any way by e.g. “?ROA”). She explained in her evidence that the key when conducting an abdominal examination was the marked difference in feel between the baby’s back and front. The baby’s back and spine were “very firm and smooth”. If, when palpating the abdomen, the feel was firm and smooth, this was indicative of the fetus being in the “OA” position, i.e. with its spine uppermost.  On the other hand, the baby’s front felt “very knobbly and irregular” because of its folded arms and legs.  Accordingly, if when palpated, the abdomen felt knobbly and irregular, this was indicative of the fetus being in the “OP” position, i.e. with its spine underneath and arms and legs uppermost. 

60.	Midwife Bickerdike further explained that confirmation of the position of the baby’s back would also come from listening for the baby’s heartbeat. She said that it was important to identify the position of the baby’s back at the outset of labour in order to listen to the baby’s heartbeat. For this purpose, she would have used a Pinard stethoscope. It was only possible to get a good heartbeat by listening to the baby’s back. She would have used her Pinard stethoscope to find the baby’s back through the lining of the abdomen and listen to its heartbeat. This would have confirmed to her that she had correctly located the alignment of the baby. The Partogram records show that the baby’s heartbeat was regularly monitored from admission.  In this case, with the fetus in the “ROA” position, the midwives would have been listening on the right of the mother’s abdomen. In my view, it is improbable that a midwife of Midwife Bickerdike’s calibre and distinction would (a) have mistaken the baby’s front for its back on palpation and then (b) not realised her mistake when applying the Pinard stethoscope.

Answers to Claimant’s arguments
61.	The Claimant faced an uphill struggle in seeking to undermine the accuracy of the redoubtable Midwife Bickerdike’s “ROA” admission note. The Claimant nevertheless sought to deploy a number of arguments, none of which, in my view, had any traction.

62.	First, the Claimant pointed to the fact that there was an accepted error rate of 15%-20% with abdominal examinations, i.e. the position of the baby's spine is incorrectly identified on palpitation in 15-20% of cases; and, therefore, it was possible that Midwife Bickerdike had been mistaken. The Claimant (and, in particular, the Claimant’s obstetrics expert, Mr Jarvis) seems conveniently to have ignored the obvious flip side of this point, which is that in 80-85% of cases midwives get abdominal examinations right; and that, accordingly, there was a probability (indeed, quite a high probability) that Midwife Bickerdike had got it right on this occasion.

63.	Second, the Claimant (through its midwifery expert, Mrs Cranna) suggested that abdominal examinations are more problematic with an obese mother, such as Mrs Sardar. Midwife Bickerdike, however, roundly rejected the suggestion that it was necessarily more difficult to palpate the fetus with an obese mother. She explained that, in fact, larger mothers, who have had previous babies, tend to have looser abdominal muscles and it is sometimes easier to feel the contours of the baby than with a slim and fit mother with tight abdominal musculature. I accept the evidence of Midwife Bickerdike.

64.	Third, the Claimant (through Mrs Cranna) pointed to ‘other errors’ in Midwife Bickerdike’s notes that night, e.g. a blood pressure entry was timed at 0625 which ought to have been 0525 and she incorrectly entered the length of the Second Stage. In my view, these errors did not amount to a row of beans and did not in any way undermine the general accuracy of Midwife Bickerdike’s notes. Busy hospital staff can be forgiven the odd minor noting infelicity, especially during a long 12-hour nightshift.

65.	Fourth, the Claimant (through Mr Jarvis and Mrs Cranna) sought to explain away why Midwife Bickerdike was unable to establish the position of the baby on any of her four subsequent vaginal examinations or positively to confirm the “ROA” position.  The Claimant argued that if the baby did rotate anti-clockwise 135o from “ROA” to “OP” as the Defendant contended, then his saggital suture would have moved significantly and it was ‘surprising’ that this was not noticed; but if, on the other hand, the baby was “LOP” on admission as the Claimant contended, the saggital suture would appear not to have moved significantly. The problem with this argument is that it fails to explain why Midwife Bickerdike did not record a position after any of the four vaginal examinations and why on two occasions she specifically wrote “position not defined”, if she had in fact felt the position or saggital suture. It should be noted that the Defendant’s midwifery expert, Mrs Brydon, gave unchallenged evidence that midwives were not as concerned in 1989 as they might be today to determine the baby’s position at this initial stages of labour, because it was not regarded as having any bearing on the management of the First Stage of labour.

66.	Fifth, the Claimant pointed to a change in the Defendant’s case on the position on admission. Midwife Bickerdike had accepted in her first statement that the baby could have been in the “OP” position on admission, notwithstanding that she had recorded “ROA” in her notes (and the Defendant’s case was originally put on the basis of “OP” on admission); but in her second statement, Midwife Bickerdike  expressed confidence in the accuracy of her original contemporaneous “ROA” note. Midwife Bickerdike was cross-examined by Mr Poole QC regarding this change in her evidence. She explained that the position of the baby’s head on admission had not seemed a particularly important part of the case initially since the main focus of the Claimant’s case seemed to be on an allegation that fundal pressure had been applied; and it was only subsequently, when she had thought about the matter further, that she saw no reason to doubt the correctness of her original “ROA” note.  I accept Midwife Bickerdike’s evidence on this point.

67.	The Defendant’s midwife expert, Ms Brydon, was cross-examined by Mr Poole QC on the basis that she had ‘introduced’ the argument that the baby was “ROA” on admission. She candidly admitted that she had (and was credited by the Hospital’s obstetrics expert, Mr Wagstaff, with circulating the Gardberg Paper). It did not seem to me, however, to be entirely fair to suggest Mrs Brydon ‘introduced’ the argument that the baby was “ROA” on admission. “ROA” was what was stated in the original contemporaneous notes. Ms Brydon was simply pointing out in her report that, from what she had seen, there was no reason to doubt Midwife Bickerdike’s original “ROA” note. In my judgment, she was right: there was (and is) no reason to doubt the correctness of Midwife Bickerdike’s original “ROA” note.  

(2) The Gardberg Paper (1998)
68.	The second reason for rejecting the Claimant’s challenge to the fetus being “ROA” is the advent of a learned medical paper. Faced with the unchallenged fact that the fetus was “OP” on delivery (as recorded by Dr Ali), the Claimant’s obstetrics and midwifery experts, Mr Jarvis and Mrs Cranna, sought to argue that it “really is most unlikely” that the fetal position would change from “OA” to “OP”. However, this assertion was comprehensively demolished by the Gardberg Paper which was deployed the Defendant’s midwifery expert, Ms Brydon, and the Hospital’s obstetrics expert Mr Ian Wagstaff.

69.	The Gardberg Paper involved a prospective study of 408 women in labour after 37 weeks gestation with a single fetus in a vertex position using sonography from the onset of labour until delivery.  The study found that only a small number of the babies, 21 out of the 408 (i.e. 3.7%), were delivered in the occipito posterior (“OP”) position; but 13 out of the 21 (i.e. 68%) were initially in an occipito anterior (“OA”) position and developed a persistent “OP” position on delivery through a mal-rotation during labour; and only a small proportion, 8 out of the 21 (i.e. 32%), started labour “OP”. The Gardberg paper therefore demonstrated that a baby which is “OP” on delivery is more likely than not to have been “OA” at the onset of labour.

(3) Claimant’s ‘severity of injury’ point
70.	The Claimant’s third main argument was that the nature of the injury spoke for itself, i.e. that the severity of the Grade 4 BPI injury was such that it could only have been caused by excessive traction. The proponent of this argument was the Claimant’s paediatrician expert, Dr Miles. There are a number of reasons for dismissing it.

71.	First, both obstetrics experts, Mr Jarvis and Mr Wagstaff, and midwifery experts, Ms Cranna and Ms Brydon, agreed in their joint experts meeting in unequivocal terms as follows:

“14. We all agree that if the right shoulder was posterior then the injury was either due to the propulsive force(s) of labour which would be non negligent [and/or] due to non negligent traction during the forceps delivery with the fetal posterior shoulder obstructed over the sacral promontory.” 

72.	Second, Dr Miles is a paediatrician not an obstetrician. The question of the forces applied during childbirth is pre-eminently an obstetric question, not a paediatric question (as the Claimant’s hand surgery expert, Mr Bainbridge, rightly acknowledged). It was another example of Dr Miles venturing opinions outside his professed area of expertise.

73.	Third, in any event, Dr Miles’s untutored view counts for very little when set against the guidance by The Royal College of Obstetricians and Gynaecologists’s that were the affected shoulder is demonstrated to have been posterior at the time of delivery “…damage to the plexus of the posterior shoulder is considered not due to action by the accoucheur” (see RCOG Guideline No. 42 above).

74.	Fourth, Mr Wagstaff and Ms Brydon, the Hospital’s Obstetrics and Midwifery experts, helpfully directed my attention to a number of medical research papers which provided scientific underpinning for the RCOG’s statement. I found the following particularly pertinent and instructive:

(1)	A 1991 paper by Allen, Sorab and Gonik which measured the traction forces applied to 29 random cases, including two case of shoulder dystocia, and recorded that traction is greater for dystocia cases than for uncomplicated births. 

(2)	A 1994 paper by Allen, Bankoski, Butzin and Nagey, which used models to simulate three degrees of birth difficulty, namely 'normal', 'difficult' and 'shoulder dystocia' cases, and found that force levels > 84 N were reached by many clinicians (74% and 82%) for ‘difficult’ and ‘shoulder dystocia’ deliveries and for some clinicians (31%) for routine deliveries. Whilst the results did not exactly correlate entirely with the live study (and clinicians' perceptions forces applied during traction were variable), nevertheless the traction forces were (again) higher for the simulated ‘shoulder dystocia’ cases than the simulated uncomplicated births.

(3)	A 2000 paper by Gonik, Walker and Grimm which concluded that clinician-applied traction to the fetal head (i.e. exogenous force) led to an estimated pressure of 22.9 kPa between the fetal neck and the symphysis pubis, whereas uterine and maternal expulsive efforts (i.e. endogenous forces) resulted in contact pressures with the symphysis pubis which ranged from 91.1 to 202.5 kPa; and, accordingly, the latter endogenous forces were 4 to 9 times the former exogenous force.

(4)	A 2006 paper by Noble which demonstrated that the Stirrat and Taylor hypothesis in their 2002 paper (that the fetus is protected by the natural forces of labour and that BPI can only be caused by negligent traction), is flawed and cannot stand in the light of recent research which shows that: "We should not be surprised that clinicians sometimes have to use stronger traction when dealing with shoulder dystocia compared with an uncomplicated birth, not least because the baby is often larger than average".

(5)	A 2008 paper by Sandmire and DeMott which reported the results of a detailed review of the incidence of BPI and concluded: “The review indicated that maternal labour forces are the most likely cause of BPI”. 
75.	Fifth, the Claimant’s case is based on outmoded medical thinking. It is clear that things have moved on considerably since Stirrat and Taylor (2002, supra) held sway and led to a rash of shoulder dystocia claims. As Hickinbottom J observed out in Arthur Croft v. Hear of England NHS Foundation Trust (supra, at paragraphs 10-11), it had been thought (ex rel Stirrat and Taylor) 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, therefore, it was to be assumed that BPI during childbirth must have been caused by excessive traction by the accoucheur. However, this was clearly no longer established thinking. It was now recognised that the single mechanism of lateral and downwards traction to the baby's head against resistance cannot readily explain, e.g., reports of significant numbers of injuries being suffered to the posterior shoulder and/or of obstetric BPI without any evidence of shoulder dystocia. 
76.	Hickinbottom J cited the following passage from the judgment of HHJ Halbert In Bennion v North East Wales NHS Trust (24 February 2009, Unreported), who reviewed over 80 pieces of literature and having heard evidence from a wide variety of experts including biomechanical engineers and said as follows: 
"7.7… I am not satisfied on the evidence before me that any conclusion can be drawn as to whether the majority of [obstetric brachial plexus injuries] are probably caused by traction, probably caused by propulsion or probably caused by a combination of both." (emphasis in the original).

77.	It should be noted that as long ago as in e.g. Jackson v. Bro Taf Health Authority (2002, supra) and Rashid v. Essex Rivers NHS Healthcare Trust (2004, supra), the courts concluded that natural endogenous forces can cause BPI and that something more than normal traction might be necessary in certain cases.
78.	Current medical thinking is best summarised in the following passage in the 2008 paper by Draycott, Sanders, Crofts and Lloyd in which 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."
79.	There is, therefore, no longer any presumption that BPI is caused by excessive exogenous or iatrogenic (i.e. clinician applied) traction rather than excessive endogenous (i.e. uterine contraction and maternal expulsive forces) combined with impact with the sacral promontory. Accordingly, the Claimant’s argument – tantamount to res ipsa loquitur - that injury could only have caused by the application of excessive force to deliver the baby’s torso during delivery (i.e. whether the right injured shoulder was anterior or posterior) is untenable.  Further, the Claimant has failed to produce any evidence of the use of excessive or other inappropriate management.

CONCLUSION 

80.	In conclusion, therefore, my primary findings of fact on the evidence are as follows:

(1)	On admission, the baby’s head was “ROA” (as recorded in the notes of Midwife Bickerdike).

(2)	On delivery, the baby’s head was in “OP” (as recorded by the accoucheur, Dr Ali).   

(3)	During labour, the baby’s head rotated 135o anti-clockwise from “ROA” to “OP”, possibly at a late stage (i.e. from an angle of 135 o  to 0 o).

(4)	On delivery, the baby’s injured right shoulder would have been the posterior shoulder.

(5)	The Claimant’s  brachial plexus injury was caused to the posterior right shoulder during labour (i.e. before delivery of the head) as a result of (a) strong cervical contractions, (b) the posterior position of the right injured shoulder and resulting impact with the sacral promontory and/or (c) the sheer size of this exceptionally large (11lb 11oz) baby. 

(6)	There was no negligence by Hospital staff at any stage during labour (i.e. by failing to apply supra-pubic pressure or the inappropriate application of fundal pressure). 

(7)	There was no negligence by Hospital staff during delivery (i.e. there is no evidence that the accoucheur, Dr Ali, applied excessive traction to the baby’s head and neck during delivery, still less that this caused the Claimant’s brachial plexus injury).

(8)	The severity of the Claimant’s brachial plexus injury (Grade 4) does not give rise to an irresistible presumption that the cause must have been excessive traction by the accoucheur on delivery; cervical contractions can themselves be very powerful.

(9)	The recorded difficulty in delivering the baby was due in large part to its exceptionally large size (11lb 11oz).  

Professor Max Elstein’s Report (1991)
81.	The last word in this case should lie with Professor Max Elstein.  In 1991, when the Claimant was 2 years old, the Claimant’s parents sought advice regarding bringing a claim against the hospital in relation to the Claimant’s birth complications. The Claimant’s solicitors instructed Professor Max Elstein of the University Hospital of South Manchester. In his Report dated 17th August 1991, Professor Elstein advised in the clearest terms that there was no basis for a claim and that the hospital staff had done well in delivering this large baby without further complications such as cerebral damage. It is worth quoting two passages from his report (emphasis added)

“Shoulder dystocia is a problem that can occur with any large baby and the medical staff clearly did their best in trying to cope with this problem. The fact of the matter is that they were able to deliver this child in spite of this mechanical disadvantage without it having suffered any significant asphyxia is indicative of the rapidity in which they recognise the problem and dealt with it in an expeditious manner. Clearly they were in difficulty and had there been any further delay in the delivery of this child, in addition to the brachial plexus injury, it would have had cerebral damage. There is no evidence of the latter. Indeed, my impression is that Fazad is the brightest of the children.”
…
CONCLUSION
It is going to be very difficult to mount a satisfactory case against the attendants of Mrs Shaheeda in the way in which her labour was conducted. In fact, considering the circumstances, I think the staff at Birch Hill Hospital did extremely well, achieving a live delivery without any cerebral damage of this very large child. Brachial plexus damage is a recognised complication of shoulder dystocia. I can find no evidence of any negligence in the way in which this delivery was conducted and which resulted in the Erb’s palsy or the Horner’s syndrome. I am therefore unable to support any Action against the Rochdale medical staff for their care of Mrs Shaheeda Gulsham during the events surrounding the birth of her son, Mohammed Fazad.”

82.	Professor Elstein would no doubt have been surprised and disappointed to learn that a claim was being brought in this case two decades later. So, frankly, am I.

RESULT 

83.	In the result, therefore, for the reasons set out above, the Claimant’s claim is dismissed.

Postcript
84.	I am grateful to both Counsel for their most able and skilled assistance throughout the hearing.

APPENDIX A