Forces or forceps: the developing law of shoulder dystocia

Date published

20/11/2017

Services

Sectors

The legal landscape is constantly in a state of flux and long-established medical principles are being regularly challenged. As such, healthcare providers must be alive to advances in the medico-legal sphere.

Shoulder dystocia is one of the most prevalent issues in obstetric care today. It had long been accepted medico-legal thinking that instances of shoulder dystocia cases are directly attributable to excessive forceps traction during delivery. Indeed, most claims for shoulder dystocia and subsequently, Erb’s Palsy, are predicated on that fact.

The law

The trajectory in this particular medico-legal faction has long been to presume breach of duty where shoulder dystocia is concerned. However, this established assumption has been disturbed. Shoulder dystocia has now been accepted, in some cases, as a consequence of the '“natural forces of labour”. As such, findings in favour of the claimant are not so readily found.

The case of Sardar v NHS Commissioning Board [2014] can attest to this. The twenty four year old claimant, born in 1989, was diagnosed as having suffered severe Grade 4 brachial plexus injury, permanent Erb’s Palsy and Horner’s syndrome. The registrar and midwife recorded “difficulty in delivering the shoulder” and the claimant alleged that but for the negligence of the clinicians in using excessive forceps traction, he would have avoided all injury.

Justice Haddon-Cave took the view that the claimant’s brachial plexus injury was, in fact, a direct result of strong cervical contractions, the posterior position of the right injured shoulder and the resulting impact with the size of the baby. The note taken by the midwife, which recorded the position of the baby’s head on admission as ‘right occipito anterior’ was consistent with the posterior position of the damaged shoulder and secured the case for the defendant. Haddon-Cave J was not swayed by the severity of the claimant’s injury.

This decision belies the long-standing assumption that every incident of shoulder dystocia is automatically attributed to the negligence of the midwife.

The practical implications

From a practical standpoint, while there are some risk factors that make the occurrence of shoulder dystocia more likely (such as particularly large babies), it is in a sense unpredictable and unpreventable. Given the capriciousness of shoulder dystocia, and that emergency caesareans will not always be possible, there is no sure-fire way to avoid such emergencies, or the claims that follow them.

Furthermore, a large proportion of these cases are brought by claimants themselves upon reaching the age of majority, as was the case in Sardar, meaning that the claim will be based many years after the index event. Given this lapse of time, the only defence in the medic’s cache is to ensure that comprehensive and synchronous notes are taken at the time, or immediately after the birth.

And while it is crucial for clinicians to take full and thorough notes, this seldom proves easy in emergency situations. Accordingly, practitioners are beginning to champion ‘proformas’ as a realistic, efficient and comprehensive way to ensure that adequate documentation is taken and dovetails with the chaotic reality of emergencies. Healthcare providers should be encouraged to continue and develop such efforts. Indeed, future cases of shoulder dystocia will hinge on the adequacy of clinician’s notes.

Comment

Whether Sardar will be readily applied remains to be seen. However, it has paved the way to ensuring that each case will be assessed on its particular facts, as opposed to uniformly consigning breach of duty. Putting claimants and defendants on a level playing field is surely a step in the right direction.

Read other items in the Healthcare Brief - November 2017