Misuse of Forceps Caused Severe Disability: Serious Criticisms of the Defence Run - Paul Sankey, Enable Law

18/09/17. In a recent birth injury case (JRM v Kings College Hospital Foundation Trust [2017] EWHC 1913 (QB)) arising from the misuse of forceps, the claimant established liability. The trial judge was very critical of the management of the case by the Defendant.

A Severe Birth Injury: The Facts

JRM was one of 2 twins born prematurely at 29 weeks. He was delivered by forceps and suffered a serious injury to his spinal cord around the time of birth. It was agreed that this was a vascular injury to the spinal cord from occlusion of the anterior spinal artery. It left him severely disabled with 4 limb paralysis and dependent on a ventilator. Sadly his younger twin died 2 weeks after birth.

A claim was brought on his behalf alleging negligence in the management of the birth. The issue of liability was tried by Mr Justice Gilbart in May 2017 and judgment given on 1^st August 2017.

Use of Forceps: The Claimant's case

The Claimant's case was based on 2 claims. The first was that there were indications of chorioamnionitis in the form of raised CRP, pain reported by the mother and the state of the liquor. These should have resulted in earlier delivery which would have avoided the injury. This part of the claim failed.

The more significant issue proved to the use of forceps. The Claimant contended that the obstetrician managing the birth, Dr M, mistakenly thought the baby was in the occipito-anterior (OA) position and therefore used Neville Barnes forceps when the baby was in fact in the occipito-lateral (OL) position. This meant he had to use excessive force to effect delivery. In doing so caused a traumatic vascular injury.

Use of Forceps: The Defendant's case

The Defendant's case was that Dr M had correctly identified that JRM was in the OA position and had delivered him correctly using 2 gentle pulls on the forceps. The injury was in fact non-negligently caused. It seems that different experts called by the Defendants proposed different and contradictory mechanisms of damage. The most significant was a blood clot or placental emboli travelling from elsewhere and lodging within the arterial lumen, a very rare event. The Defendant's experts in obstetrics and neonatology raised alternative theories.

Some Agreed Matters

At trial it was agreed that there were 2 possible mechanisms of damage:

1. A traumatic injury causing arterial dissection and a subsequent blood clot (the Claimant's case); or

2. A blood clot travelling from elsewhere and lodging in the arterial lumen (the Defendant's case).

It was also agreed that a finding of excessive force and traction from the forceps or that JRM had been in the OL position would make the Claimant's arterial dissection theory more likely. This mechanism of damage was consistent with JRM being in the OL position but was inconsistent with him being in the OA position. Therefore establishing whether JRM was in the OA or OL position was a key question.

The Evidence

The evidence on the events surrounding the birth took several forms.

1. Statements from the parents. The mother described several attempts to deliver the baby. The father said he was surprised by the degree of force used and also that nursing staff commented on JRM's unusual degree of bruising.

2. Statements by Dr M and Dr H, a senior registrar assisting, to the effect that JRM was delivered gently with 2 pulls

3. Evidence of bruising in the form of photographs and contemporaneous notes. Arguments centred on the location of the bruising and the extent to which it indicated whether JRM was in the OA or OL positions. There was also argument about the extent of bruising, and whether it was suggestive of a high degree of force.

4. Expert evidence from 2 obstetricians.

5. Evidence of the likelihood of alternative explanations.

The Judge's Findings

The judge found for the Claimant. Had Dr M examined the baby properly he would have found he was in the OL position. His use of forceps to a baby in the OL position increased the degree of force needed. JRM was delivered with excessive force with forceps in the wrong position. Misuse of forceps and the mode of delivery adopted by Dr M caused the injury.

He rejected the evidence of Dr M and Dr H as not credible. It was inconsistent with the photographs, which the judge found to show bruising on the nose and central face consistent with delivery from the OL position. It was also inconsistent with evidence about the nature and extent of bruising contained in the medical records and with the father's unchallenged evidence about comments made by nursing staff. The extent of bruising suggested that no little force had been used. The judge also found that alternative explanations were unlikely.

In fact he was scathing about Dr M's evidence. 'His evidence was unequivocally that the baby's presentation was OA, and that he had checked that. Given the fact that there is substantial evidence that the baby was actually in an OL position, that must undermine his credibility as a witness, which is already severely damaged by his insistence that nothing occurred in delivery to account for the bruising seen on the baby, save for its nose. Under the circumstances, I reject his evidence as not credible.'

Criticisms of the Defendant

Before concluding, the judge took the opportunity to criticise the Defendant's handling of the case.

He was highly critical of the defence it chose to run. 'I am very critical of the Defendant Trust or whoever in the NHSLA who considered that this claim should be resisted on the basis (among others) that the delivery was a straightforward and unremarkable forceps delivery. It must have been known for some time that Dr M's evidence about the delivery was, to say the least, difficult to reconcile with the internal notes and records, where the obvious injuries to the baby had excited so much comment and concern by those treating him.'

It had not called any of the clinicians or nurses who dealt with JRM to describe his condition despite the importance of the issue about the location of bruising and the conflict between Dr M's evidence and the medical records.

Its experts asserted 3 different and inconsistent mechanisms of damages, 2 of which were inconsistent with the agreed statement of the neurologists that the alternative possibilities were arterial dissection following trauma or a blood clot. 'While I understand a Defendant arguing that the Claimant had not proved causation, that is a different matter from a Defendant asserting different mechanisms on how the injury was caused, and calling expert witnesses who are not in agreement with each other. The various experts are entitled to hold their expert opinions, but it is for the Defendant to determine which case it chose to argue at trial.

Final Comments

This was a tragic and avoidable birth injury from the misuse of forceps. It has left a child with serious disability. The court gave judgment on liability in his favour and efforts will now be focused on establishing the amount of damages to which he is entitled, an important part of which will the cost of meeting his need for care in the future.

As regards the judge's criticism of the conduct of the case, the cost of litigation has been the subject of much debate and reviews both by Lord Justice Jackson and the Department of Health. The National Audit Office is conducting a review of NHS Resolution (formerly NHS Litigation Authority). This appears to be a case where public money was wasted. NHS resources would have better spent compensating a deserving child than fighting a case based on witness evidence the judge thought simply not credible.

Paul Sankey is a solicitor and partner at Enable Law https://www.enablelaw.com/team/paul-sankey/

Image: public domain from https://pixabay.com/en/embryo-ivf-icsi-infertility-1514192/