Watts v Secretary of State for Health
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Peter Hughes |
| Judgment Date | 10 November 2016 |
| Neutral Citation | [2016] EWHC 2835 (QB) |
| Docket Number | Case No: HQ15C02880 |
| Court | Queen's Bench Division |
| Date | 10 November 2016 |
[2016] EWHC 2835 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Peter Hughes QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: HQ15C02880
Simon Wheatley (instructed by Shakespear Legal LLP) for the Claimant
Matthew Barnes (instructed by Bevan Brittan LLP) for the Defendant
Hearing dates: 25 th, 26 th, 27 th and 28 th October 2016
His Honour Judge Peter Hughes QC:
The Claim
This is a claim for damages for personal injury sustained by the Claimant at birth on the 6 th September 1993 in Stoke Mandeville Hospital.
In this judgment I will refer to the Claimant, either by that title or as "Stevie". I will refer to her parents either by name or as "the mother" and "the father".
The injury was a right brachial plexus injury 1, otherwise known as Erb's Palsy 2. It has left the Claimant with permanent weakness and restriction of movement in her right upper limb.
Subject to liability, quantum has been agreed in the overall sum of £175,000.
The Issues
It is accepted that the Claimant's birth was complicated by the occurrence during labour of shoulder dystocia.
Shoulder dystocia occurs when, after delivery of the head, the anterior shoulder of the baby becomes obstructed and cannot pass below the mother's pubic symphysis. It is a well-recognised obstetric emergency. If the shoulder is not freed and the delivery completed, the baby may die or suffer serious brain damage because of compression of the umbilical cord in the birth canal 3.
It is the Claimant's case:
i) that at the time of delivery, the position of the head was left occipito anterior (LOA) 4;
ii) that the right injured shoulder was in the anterior 5 position facing the pubic symphysis of the mother and would have emerged before the left shoulder; and
iii) that the injury was caused by excessive pulling or traction to free the shoulder.
The case for the Defendant is:
i) that no excessive force was used;
ii) that, in any event, the head was right occipito anterior (ROA) 6 and the right shoulder was in the posterior position; and
iii) that the likely cause of the injury was traction against the mother's sacral promontory 7 during a rapid delivery of a large baby.
The Birth
The Claimant was born at 42 weeks and weighed 9lbs 14oz. Her mother had been admitted to hospital on the 4 th September for induction of labour having gone ten days over term.
The Claimant was the mother's third child. In all she has had six children, all girls. Her first and second, born in January and December 1990 respectively, were also induced. The first weighed 7lbs 5oz and the second 9lbs 6oz. Her subsequent three were all born by caesarean section.
The mother is 5ft 4in tall. At the time of the Claimant's birth she estimates her weight at between fifteen and sixteen stones.
Present in the delivery room at or about the time of the birth were the following:
The mother – Gina Watts, now Freshwater
The midwife – Midwife Ridgway
The father – Christopher Watts [He was present for part of the time but not at the birth itself]
Two additional midwives – Sisters Gleeson and Clairmont [They were called in by Sister Ridgway because of the shoulder dystocia]
The obstetrics' registrar on duty – Dr Coker [now a consultant]
The paediatrician on duty – Dr Webb [Who was not present for the birth but arrived soon after]
I have heard evidence from all save, Sister Clairmont and Dr Webb, who I understand it has not been possible to trace because of the long passage of time. The events were over twenty-three years ago, and apart from the parents the witnesses have no recollection of events and are dependent on the notes made at the time.
The Medical Records
The "Summary of Labour" records the time and duration of labour as follows:
| 1 st Stage – | Start of regular contractions | 14.00 |
| Time of rupture of membranes | 15.15 | |
| 2 nd Stage | Onset | 15.35 |
| Time of Delivery | 15.38 |
This part of the summary was completed by Midwife Ridgway and underneath she has recorded that the Claimant was delivered by Sisters Gleeson and Clairmont but that she delivered the head.
In a section headed "2 nd Stage", she has made the following entries –
Presentation & Position – at onset Cephalic 8 ROA at delivery Cephalic ROA
Complications severe shoulder dystocia
Mode of delivery spontaneous vertex 9 delivery. Supra-pubic pressure & traction to deliver shoulder
The ante natal and labour notes, so far as relevant, are as follows:
04.09.93 19.00 On palpation –
Fundus – to dates
Lie – longitudinal
Position – ROL
Presentation – cephalic
05.09.93 07.00 Vaginal examination. Plan to Prostin 10 induction. 3mg
prostin inserted. [Further doses were given at 11.20 and
on the 6 th at 07.00 and 11.00]
06.09.93 14.30 Contracting moderately to strongly – delivery suite
Contacted
15.00 Abdominal examination –
Fundus at term, longitudinal lie, cephalic presentation,
left occipito-anterior, engaged. FH
15.15 Patient requesting epidural
Type II decelerations fetal bradycardia 11. Patient turned on
left side. 02 given by face mask. SHO Dr Vogelzand
bleeped, did not answer, registrar Dr Coker bleeped
[A vaginal examination records the presentation as
cephalic but the position of the head as not defined]
15.25 Seen by Dr Coker, he requested fetal blood sampling.
Patient pushing strongly with contractions. Contracting
1:1 very strong
15.30 Dr Coker asked for vaginal examination to
confirm/exclude full dilation of cervix 12. This was
performed by Sister Gleeson at my request.
[A further vaginal examination, carried out by Sister Gleeson, again says cephalic and head not defined. It also refers to the presence of thick meconium 13]
15.35 Vertex visible and delivered rapidly in left lateral
position. Thick meconium stained liquor
aspirated.
Paediatrician called again for delivery
Another urge to push
Difficulty in delivery of shoulders –
Severe shoulder dystocia
Help summoned
Episiotomy 14 performed by Sister Gleeson with help from Sister Clairmont.
Dr Coker present at delivery and Dr Webb paediatrician.
With supra-pubic pressure and downward traction anterior then posterior shoulder delivered by Sister Clairmont and Sister Gleeson at 15.38.
It is apparent from the notes that there were a number of complicating factors that made it essential to deliver the baby without delay –
i) the mother was experiencing pain and asking for an epidural;
ii) at the same time the baby was experiencing fetal bradycardia;
iii) meconium was present; and
iv) on top of all that delivery was obstructed by shoulder dystocia.
It is not clear from the notes whether Sister Gleeson left the room following the vaginal examination at 15.30 or as to the movements of Dr Coker. Although he is recorded as present at the delivery, there is nothing in the notes to indicate that he took any part in it.
An entry in the paediatric notes at midnight on the 6 th September, made by the paediatric SHO records that the right arm was not moving and that an x-ray was planned of the right arm and chest.
The Reaction of the Parents
The parents both say that, although they were informed that Stevie had sustained some ligament damage at birth, they were led to believe that this would not be permanent, and that the first they heard of "Erbs Palsy" was from their health visitor some time later.
Understandably they were both deeply concerned and wanted explanations as to what had happened. In his witness statement, Mr Watts says:
"After meeting the GP and finding out more about the condition Erbs Palsy and how it was caused from my own research, I called the hospital and asked for a meeting with the Chief Executive. I was very angry at what I discovered.
The meeting took place within weeks of Stevie's birth but angered me even more. The Chief Executive was doing everything she could to avoid admitting responsibility for what had happened. It seemed to me that it came back to the midwife not knowing what to do in the crisis she was faced with in that delivery room.
I was so angry that I wanted to make a claim at that time. However, Gina was traumatised by the whole thing and did not want to take matters further so I respected her wishes." [paras 27–29]
At some stage – when is unclear – the mother drafted a letter of complaint, but it was never sent. She says that she composed the letter on her own and that her husband was not involved. It was found stored away with other items when these proceedings were commenced.
In the letter she set out an account of her recollection of what had happened in the delivery room. She says that she arrived in the room at about 2.45pm. The letter continues —
"As soon as I got downstairs I asked for an epidural because I knew these contractions were so strong and painful I would not be able to cope. The lady said she would try to get one there would be no time. I had no other pain relief except gas. Soon I was pushing and was aware of panic around me, there was no much communication with me. I remember a midwife pressing the emergency button and many people came in, then I heard the midwife telling my husband to go out of the room, nothing was said to me. Then my husband was back and I felt myself being pulled down the table and someone leaning over my stomach. My husband was holding on to me. My baby girl was born (Stevie). At this time I thought she had died until I heard her and they had taken her to have the meconium removed."
In a later passage, she wrote:
"After reading I realised felt that it Erb's Palsy could have been avoided as pulling her head to far away from her shoulder and stretching her neck was [indecipherable words crossed...
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