The High Court dismissed a child’s claim alleging that negligence during his birth caused an Erb’s palsy injury, finding that the evidence did not establish that shoulder dystocia had occurred and gone undetected.
In a judgment delivered on 10 November 2005, Mr Justice Johnson said the plaintiff had failed to prove, on the balance of probabilities, that there had been shoulder dystocia which was undetected and untreated. The judgment records that the claim was dismissed; it does not specify any award or costs order.
The plaintiff, then five and a half, was born at Mount Carmel Hospital in July 2000. The parties agreed he had a mild to moderate brachial plexus injury suffered at or before birth. His claim alleged that the defendants failed to detect and properly manage shoulder dystocia, and applied unnecessary lateral traction that caused the injury.
The mother’s labour began spontaneously. After the delivery slowed, Dr Ruth Connolly used a ventouse twice, but it slipped off, and then used Neville Barnes forceps. Her notes described an easy delivery. The baby’s Apgar scores were 8, 9 and 10 at one, five and ten minutes. Within about 40 minutes, staff noted that his right arm was not functioning properly.
The plaintiff’s expert, Professor Taylor, said shoulder dystocia was present in the great majority of Erb’s palsy cases and considered it more likely than not that it had been missed and not treated. He said the mother should have been placed in the McRobert’s position and attributed the injury to lateral traction after the forceps were used. He accepted that a small proportion of cases occurred without shoulder dystocia.
Dr Connolly said she would have detected and recorded shoulder dystocia had it occurred. A midwife gave similar evidence. Defence experts also disputed the plaintiff expert’s estimate of how often Erb’s palsy occurred without shoulder dystocia; Professor Bonner put that figure at up to 25 per cent. They said shoulder dystocia would ordinarily cause a delay between delivery of the head and the trunk, and the mother’s evidence described no such delay.
The judge found the defence witnesses impressive and considered the delivery, though assisted, normal and simple on the evidence and notes. He concluded that the plaintiff had not discharged the burden of proof and dismissed the claim.