In this second blog for Erb’s Palsy Awareness week Joachim Stanley considers the role of the independent midwifery expert when advising clients in clinical negligence cases involving Erb’s Palsy.
In any claim for clinical negligence, there are several issues to be explored. The first of these is to see whether the care provided by the Defendant in the case was so bad as to be negligent. This is known as breach of duty of care. In a case for a client with Erbs Palsy which was suffered around the time of birth, the Defendant in the case is usually the NHS Trust responsible for the hospital where the child’s mother was being cared for during her pregnancy and/or where she gave birth. These must always be explored by reference to independent medical experts working in a relevant discipline as those who provided the medical care and treatment which is being investigated.
In a claim arising from Erb’s palsy, the expert midwife’s role is almost always to assess whether the care provided by the midwives both during the pregnancy and at birth fell below the acceptable standard for the time. In order to make this assessment, s/he will wish to review the medical records of the pregnancy and birth, and also usually a witness statement from one or both parents as to their recollections of the pregnancy and birth.
The instructed midwifery expert will assess the antenatal care, in order to see whether any risks for shoulder dystocia were appropriately identified and steps taken to consider options for delivery if there are increased risks of shoulder dystocia.
The expert will also review the management of labour carefully. S/he will wish to assess carefully how shoulder dystocia was managed. In particular, they may wish to review:
1. The number of pulls taken after the diagnosis of shoulder dystocia. It would be very difficult to diagnose that the baby’s shoulder is impacted without one pull, unless there were obvious signs like “turtle necking”, where the head tries to retract back;.
2. The sequence of events following diagnosis of shoulder dystocia. Normally it would be expected for the following actions to be taken in the first instance:
3. The time taken from point of diagnosis of shoulder dystocia to delivery
4. Whether there were signs of the baby being in distress.
5. The position of the baby during delivery.
6. The condition of the baby at birth.
7. Any disparities between the parents’ version(s) of events and that provided by the medical records.
The midwifery expert will usually then prepare a formal report setting out their views on the standard of midwifery care provided and whether this was acceptable.
Generally, legal teams explore the issue of the standard of care first, and it is therefore likely that a midwifery expert would be one of the first that they would contact. Following receipt of a report, it is possible that the midwifery expert might assist at a meeting chaired by a barrister. The midwifery expert will be completely independent, so will have no connection with the family of the hospital/midwives involved in the case. Their duty is to provide an independent opinion on the standard of care.
Midwifery experts tend to be of key importance in Erb’s palsy cases, reflecting the fact that the initial diagnosis and response to shoulder dystocia is often made by midwives managing deliveries.
Erb’s palsy cases can be very complex, and may attract significant financial awards if pursued successfully because of the severity of the injury and the lifelong impact on the injured person. It is important that all issues are fully explored and I and my colleagues work closely with very experienced midwifery experts to ensure that our clients receive thorough advice and are confident that their case has been fully investigated.