Whilst there was no doubt that the Claimant's cerebral palsy and severe developmental disabilities had arisen out of the circumstances of his birth there was no negligence in the steps that the attending doctors had taken (or not taken) in the course of his delivery, therefore the Defendant health authority was not liable to the Claimant.
The Claimant claimed damages from the Defendant for personal injury arising out of the circumstances of his birth during which he sustained shoulder dystocia. The remainder of the Claimant’s body was not delivered until 15 minutes after his head had appeared and the starvation of oxygen to his brain caused him to suffer from cerebral palsy and severe development disabilities.
The Defendant’s alleged negligence was tried as a preliminary issue. The Claimant contended that his mother should have been advised, as part of her antenatal care, of the risk of shoulder dystocia and offered a caesarean section instead of giving birth vaginally, which she would have accepted thereby avoiding a difficult birth. The Defendant submitted that even if it had been obliged to mention the risk of shoulder dystocia and option of caesarean section, an explanation of the risks of a caesarean section would have been given and vaginal birth would have been advised. Additionally, as the Claimant’s mother was a Jehovah's Witness with a principled objection to blood transfusions, it was not likely that a caesarean delivery would have been chosen in any event.
The Claimant further contended that as his head had appeared and it became apparent that shoulder dystocia was likely; the attending doctors had taken too long to achieve the birth of the remainder of his body. He argued that if they had not been negligent, his birth would have been completed sufficiently quickly for him to avoid any permanent damage or, alternatively, in the absence of negligence, he would have been born quicker than he was so the degree of impairment which he had suffered would have been less.
Judgment for the Defendant:
- The Claimant’s mother should have been told of the possibility of the risk of shoulder dystocia if she gave birth vaginally and there should have been some mention of the alternative of caesarean section. However, if told of that risk (which was no more than 10 per cent), and following the advice against a caesarean section, on the balance of probabilities, the Claimant’s mother would not have been one of those unusual patients who would have opted for a caesarean against the advice of her consultant.
- There was no dispute that the Claimant’s condition was due to the interval between the delivery of his head and body and the fact that the cord had been compressed during that time. The consultant had delivered many thousands of babies and had known over 100 cases of shoulder dystocia, but the Claimant’s was the worst case she had ever come across. In all the circumstances, there was no negligence in the steps taken or not taken by the Defendant in the course of the Claimant’s delivery.
This is a rational judgement reflecting the dangers associated with caesarean section as much as complications of vaginal delivery. It is clear however that a full discussion of risks of shoulder dystocia should have occurred and risk management would necessitate a record of the same in the patient’s medical notes. Whilst the decision was influenced by the mother’s religious beliefs, in the absence of these we suspect the hospital may have been more vulnerable to an adverse decision.