If you or your baby suffered a brachial plexus injury during delivery, the damage could have severe long-term consequences. Negligent handling of the birth by midwives and/or obstetricians may have been responsible. If this is the case then it may be necessary to understand certain erb’s palsy legal issues in greater detail.

If you suspect negligent handing, then please call our medical negligence team on 0800 923 2080. We are experts in investigating erb’s palsy claims, and can establish whether your child’s condition is likely to have been caused by negligence.

In addition to reading about the causes of erb’s palsy, you may also be interested in reading about the common erb’s palsy legal issues surrounding compensation claims:

When might I have a claim for erb’s palsy?

Should a caesarean section have been considered?

Why is witness statement evidence important in erb’s palsy claims?

How can I prove my erb’s palsy case?

Theories of maternal propulsion versus excessive traction causing injury

When might I have a claim for erb’s palsy?

You’ll have a claim if the cause of your erb’s palsy, or your child’s erb’s palsy, was negligent medical treatment. In these cases, it’s necessary to prove that injury to the brachial plexus nerves during birth was caused by substandard medical care.

Some examples of substandard medical care that can lead to brachial plexus injury during childbirth are:

  • Risk factors for shoulder dystocia were evident but not discussed with the mother (or planned for). Risk factors include a larger than average baby and indicators from a previous delivery.
  • The established emergency steps for managing shoulder dystocia (freeing the baby’s shoulders) were not followed or properly executed.

Sometimes it’s not possible for medical practitioners to predict or prevent shoulder dystocia from happening, or for delivery staff to avoid injury while freeing the shoulders. In these cases, medical negligence cannot be attributed to the cause of your/ your child’s erb’s palsy.

Should a caesarean section have been considered?

Where there is a risk of shoulder dystocia, the mother should be informed of those risks and the relevant treatment options available to her e.g. the mother should be given the chance to make an informed decision on whether to opt for an elective caesarean section over a vaginal delivery.

In a recent Scottish case, Montgomery v Lanarkshire Healthcare, an appeal judge determined that the hospital was responsible for the brachial plexus injuries suffered to the baby on delivery.

The circumstances of this case was that the mother had voiced her concern about a vaginal delivery because she was a diabetic of small stature and had been told that her baby was larger than average.

Despite this, the obstetrician failed to advise her of an 8-10% risk of shoulder dystocia, and did not discuss the option of an elective caesarean section. Mrs Montgomery was insistent that she would have chosen a caesarean birth had she been given that information. Her evidence was accepted and she succeeded in her claim.

The court held that: “The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”

So where there’s a risk factor that’s more than a negligible risk, the patient should be informed of this risk and allowed to make an informed decision on his or her treatment options. It’s not for the doctor to decide on whether or not the risk is relevant to the patient.

An example case was discussed recently in the High Court, FM (by his father & litigation friend GM) v Ipswich Hospital NHS Trust. [2015] EWHC 775 (QB)

In this case, the mother’s second delivery was complicated by shoulder dystocia. In light of this, the court held that the mother should have been advised of the risks of proceeding with a vaginal delivery with her third child, and that not to have discussed the risks was a negligent failure.

The court agreed with the hospital that the mother may well have been advised to proceed with a vaginal delivery, but accepted the mother’s evidence that, in spite of such advice, she would have opted for an elective caesarean section over a vaginal delivery had she been told about the risk of shoulder dystocia and been given a choice.

The case succeeded. Had the staff performed a caesarean section, the shoulder dystocia and the resulting injury would not have occurred.

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Why is witness statement evidence important in erb’s palsy claims?

In erb’s palsy claims it can help if the mother or her birth partner can give a witness statement as to the medical staff’s actions during birth, particularly after delivery of the baby’s head.

We will often ask our witnesses these key questions:

  • Where were you in relation to the mother e.g. what side of the bed were you standing on during delivery?
  • Did you see the baby’s head being delivered? Can you recall if it was facing you or not? If the medical notes are of poor quality, this information can assist us in establishing the position of the baby and whether the affected shoulder was anterior or posterior at the time of delivery.
  • Do you remember the doctor or midwife pulling on the baby’s head? If so, how hard? This assists us in establishing whether or not excessive traction was applied.
  • Do you remember whether the doctors or midwives used manoeuvres to help release the shoulders, including the McRoberts position or suprapubic pressure ?
  • What was said to you afterwards about what went wrong?

If the medical notes are poor, these questions can help us to establish what happened during the birth.

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How can I prove my erb’s palsy case?

There is an accepted template that assists lawyers in considering whether there was negligence on the part of the medical attendant(s) delivering the baby. This prompts key questions about the delivery and what happened.

Our expert lawyers will look at the evidence that supports your case, and seek to establish:

  • Was there clear evidence of shoulder dystocia?
  • Was the affected shoulder anterior or posterior? If the shoulder was posterior, you are effectively ruling out a case (see below).
  • Were pro forma shoulder dystocia medical records completed?
  • What is the quality of the medical records?
  • How many medical staff were in the room?
  • Was the McRoberts position used? How was this done?
  • Was suprapubic pressure applied?
  • Was there an episiotomy?
  • Were internal manoeuvres employed?
  • What is the training record of the obstetrician or midwife?
  • Was there a very short second stage of labour?
  • Is there witness statement evidence of excessive traction on the fetal head after it was delivered?
  • How many nerve roots are affected?
  • Is the injury permanent?
  • Was it a large baby?

The importance of medical records in an erb’s palsy claim

Medical notes should be correctly and accurately made by the birth attendants, and are therefore vitally important in an Erb’s palsy legal claim.

We look at the mother’s medical records to establish the fetal position on delivery. A baby can change positions during the course of labour but of key importance is its position when the head is delivered. See below: Theories of maternal propulsion versus excessive traction causing injury.

The fetal positions are categorised as follows:

anterior and posterior positions

The Royal College of Obstetricians and Gynaecologists (RCOG) demands a certain standard of record keeping during a birth, and has produced a pro-forma sheet that should be completed in the event of shoulder dystocia.

It clearly sets out all of the information required to give an accurate account of the birth, including who was involved and exactly what procedures were undertaken to relieve the obstruction. In summary, it specifically requires:

  • The time of the delivery of the head
  • The direction the head is facing after restitution
  • The manoeuvres performed, their timing and sequence
  • The time of delivery of the body
  • The staff in attendance and when they arrived
  • The Apgar score of the baby
  • The umbilical cord blood gas test results (to check for any oxygen deprivation).

We frequently see cases where this information is very poor or not done.  The courts take a very dim view of poor medical records as it prohibits the claimant from being able to accurately set out their case.

The importance of medical training in an erb’s palsy claim

We also look at the medical training of the person who delivered the baby. Poor training or a lack of sufficient training is usually associated with the use of excessive traction (pull) on the fetal head.

See also Causes of erb’s palsy.

Further reading:
1. Maternal and Child Health Research Consortium, CESDI 5th Annual Report- Focus Group Shoulder Dystocia, 1998: London. p.73-39
2. Crofts, J.F., et al., Training for Shoulder Dystocia: a trial of simulation using los-fidelity and high-fidelity manequins. Obstet Gynecol, 2006. 108(6): p. 1477-85.
3. Goffman, D., et al., Using stimulation training to improve shoulder dystocia documentation. Obstet Gynecol, 2008. 112(6): p.1284-7.
4. Crofts, J.F., et al., Training for Shoulder Dystocia: a trial of simulation using los-fidelity and high-fidelity manequins. Obstet Gynecol, 2006. 108(6): p. 1477-85.
5. Crofts, J.F., et al., Observations from 450 shoulder dystocia simulations: lessons for skills training. Obstet Gynecol, 2008. 112(4): p. 906-12.

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Theories of maternal propulsion versus excessive traction causing injury

In establishing the cause of your baby’s brachial plexus injury and whether negligent handling was involved, it’s important to establish whether the baby’s shoulder was anterior or posterior at the time of delivery.

The significance of the baby’s position on delivery

It is accepted that when the baby is in a posterior position at the time of delivery, any injury to the shoulder is likely due to natural causes, rather than negligent handling by the midwife or obstetrician.

In the posterior position, the brachial plexus nerves can be stretched and injured when uterine contractions force the baby down against the bone and its shoulder is impacted against the mother’s sacral promontory.

It’s accepted that when the baby is in an anterior position at the time of delivery, any injury to the brachial plexus is much more likely to be caused by excessive traction (excessive pull) on the part of the midwife or obstetrician.

The excessive traction applied by the birth attendant can cause damage to the brachial plexus by:

  • The extent of the force used
  • The incorrect direction of force applied
  • The nature of the force e.g. sudden jerking or pulling movements.

For further reference:

1. Mollberg, M., et al., Obstetric brachial plexus palsy: a prospective study on risk factors related to manual assistance during the second stage of labor. Acta Obstet Gynecol Scand, 2007. 86(2): p. 198-204
2. Mataizeau, J., C. Gayet, and F. Plenat, Les Lesions Obstetricales du Plexus Brachial. Chir Pediatr, 1979. 20(3):p. 159-163

The significance of a permanent injury

Temporary injuries to the brachial plexus can be caused by natural processes or by negligent handling during the birth. It’s generally considered, however, that permanent injuries to the nerves are caused by excessive and inappropriate traction by the birth attendant, significantly stretching the neck at such an angle to cause severe damage to the nerves. See Grades of erb’s palsy.

Can the force of maternal contractions cause brachial plexus injury?

It’s not the force of the push or pull in itself that damages the brachial plexus nerves, but rather the stretching of the neck at an angle. With strong contractions, a temporary injury might occur if the baby is in a posterior position when its shoulders become impacted. But very strong contractions in themselves should not cause permanent nerve injury. To cause a severe and permanent injury requires force on a stretched neck, when the head is caused to extend at a significant angle to the neck.

It’s been hypothesized that a very short second stage of labour (the pushing stage) may be related to brachial plexus nerve injuries but there does not appear to be clear evidence on this.

Recent case developments

On the back of a study prepared by Professor Tim Draycott, a recent Scottish case illustrates how the facts surrounding a birth may now speak for themselves in favour of the claimant.

In CD v Lanarkshire Acute Hospitals NHS Trust [2015] CSOH 142, Lady Rae concluded in her judgement:

“While I accept that the research currently available does not conclude that all brachial plexus injuries are necessarily the result of excessive traction in the face of shoulder dystocia, it is clear from the evidence of Professor Draycott and Professor Carlstedt that consideration has to be given to the nature and severity of the injury suffered by C, the fact that it was his anterior shoulder which was affected, as opposed to the posterior shoulder, and to the fact that the injury was permanent. When these factors are taken into account…it is more probably than not that the injury to C was caused by excessive traction in the context of shoulder dystocia.”

Professor Draycott’s published study found that at Southmead Hospital they had no incidences of permanent brachial plexus injury in 24,000 births as a result of appropriate staff training. He commented at the trial:

“This study showed that with intensive training… the incidence of permanent brachial plexus injury was reduced to nil.”

In Lady Rae’s judgment it was noted:

“Professor Draycott was of the view therefore that permanent injury is almost always avoidable and cannot be caused by the natural propulsion forces of birth because the process of labour has not changed…He specified other such factors such as: the injury to C involved damage to 3 nerve roots…it involved the anterior arm; and the injury was permanent. This all pointed to the injury being preventable and relating to poor management of shoulder dystocia.”

It now seems that if certain criteria are met, such as the baby lying in an anterior position on delivery and sustaining severe permanent injury to the brachial plexus, the claimant’s legal representative can argue with a greater degree of confidence that the injury, on balance, was caused by excessive traction to the fetal head. In these circumstances there would be less need for strong supporting witness statements evidencing the actions of those attending the birth.

This argument has not been reinforced by a new working template for assessing erb’s palsy cases but, unless defendants are able to successfully challenge Draycott’s thinking, we believe this is only a matter of time.

Further reading:
Crofts, J. F et al., Can accurate training and management for shoulder dystocia prevent all permanent brachial plexus injuries? BJOG: An International Journal of Obstetrics and Gynaecology, Vol. 120, 06.2013, p. 412-412

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