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Erb’s Palsy Awareness Week 2014 – Establishing Breach of Duty of Care in Erb’s Palsy claims

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    In the penultimate of our series of blogs raising awareness of Erb’s Palsy, we explore how Erb’s Palsy can be suffered as a result of negligence at the time of birth.

    By Joachim Stanley

I explained in my earlier blog that Erb’s Palsy is caused by injury to the brachial plexus nerve and how this can be caused as a result of shoulder dystocia during birth.  When shoulder dystocia occurs it is an obstetric emergency and it is vital that the obstetricians and midwives act appropriately to ensure safe delivery of the baby.

Breach of Duty of Care

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 (usually the treating hospital in birth injury claims) was so poor as to breach its duty of care to the Claimant.  In other words, the Claimant needs to show that the care was bad enough to be negligent.

In order to establish whether the Defendant has breached its duty of care, the Claimant’s legal team must review the events in question with medical experts and see whether a specific legal test, known as the Bolam test, is satisfied.   The Bolam test stipulates that care will only be negligent if the Claimant can establish that no reasonable clinician working in the relevant field of medicine at the time of the events complained of would have treated him or her, in the way s/he actually was.

In clinical negligence claims, experts of the same disciplines as those whose actions are under scrutiny are asked to assess the claim: we must always judge like with like.  Thus, in a claim arising from Erb’s palsy, breach of duty of care is usually assessed by an expert midwife and/or a consultant obstetrician.

What the Experts Do

In a claim for Erb’s palsy, both midwifery and obstetric experts may be asked to review the medical records of the mother and the baby, and usually also the witness statements of one or both parents.

Both the expert consultant obstetrician and midwife would be asked to review the care provided antenatally.  Both would generally wish to see whether risks for the occurrence of shoulder dystocia (e.g., an incidence of shoulder dystocia in a previous pregnancy, or macrosomia (i.e., the baby was large)) were appropriately considered.   If a risk was identified, both would want to be satisfied that appropriate steps to minimise that risk were then taken.

In the context of the birth itself, the midwifery expert will review the management of labour in its entirety.  They will assess how shoulder dystocia was managed once it had been identified.  In particular, s/he may wish to review:

1. The number of pulls taken after the diagnosis of shoulder dystocia (n.b. it would be very difficult to diagnose that the baby’s shoulder is impacted without one pull, unless there are obvious signs like ‘turtle necking’, where the head tries to retract back into the vagina).

2. The sequence of events following diagnosis of shoulder dystocia – in the present day you would expect to see:

(a) an emergency call being made for additional assistance;

(b) the mother to be put in the McRoberts position, with knees drawn up towards the chest;

(c) suprapubic pressure to be applied prior to a further attempt to deliver the baby (the midwife places both hands on top of the mother’s pubic bone and presses down, to attempt to release the impacted shoulder); and, possibly,

(d) The “Pringles manoeuvre” (where the member of staff delivering the child inserts her hand into the base of the vagina and attempts to extract the baby’s lower arm);

3. The time taken from point of diagnosis of shoulder dystocia to delivery;

4. Whether the baby’s condition was compromised at the time;

5. The condition of the baby at birth;

6. Any differences between the parents’ version(s) of events and that provided by the medical records;

7. If the records are not very clear, the child’s current condition to see if it is possible to determine from that what happened.

The obstetrician will review at least some of the same issues, but will concentrate upon the care provided once a doctor had been called to assist.  In the context of shoulder dystocia, the role of the obstetrician is to manage the emergency situation once it has been identified, and the thrust of an obstetric expert’s report will reflect that.   An obstetric expert might be expected to assess whether a caesarean section should have been considered and/or performed, and in extreme situations, possibly whether surgical techniques such as the Zavanelli manoeuvre should have been undertaken and/or done better, or more rapidly.

Generally, legal teams explore the issues of breach of duty and causation first.  This is because it needs to be established if there is a claim to be taken forwards.

If liability is admitted then the next stage is to look at the injuries that have been suffered and put forward a claim for compensation for the injuries that have been suffered.  In our previous blogs we have looked at the different types of nerve injuries that can be suffered and the different treatments and therapies that may be considered.  In my next blog I consider the different types of compensation that can be claimed depending on the nature and severity of the injury suffered.

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  1. Pingback: Erb's Palsy | Therapies and types of surgery | Clinical Negligence Team

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