The likelihood of a larger baby
In 1999 Mrs Montgomery was expecting her first baby – an exciting time for any new mother. She was an insulin dependent diabetic and relatively short, being just over 5 feet tall. It was well known at that time that women suffering from diabetes were likely to have larger than average babies.
The widest part of a baby’s body is usually the head but, when a woman is an insulin dependent diabetic, the widest part of their baby may be the shoulders. This means that during birth, although the baby’s head can descend, the baby’s shoulders get stuck in the mother’s pelvis and cannot be freed without medical assistance, such as the use of forceps. This condition is known as shoulder dystocia and in 1999 the likelihood of shoulder dystocia in diabetic mothers was known to be 9-10%.
The risk to the baby
In the shoulder there is a network of nerves known as the brachial plexus that send signals to the shoulder, arm and hand. Although it is a rare complication of shoulder dystocia, for the babies of some diabetic mothers (0.2%) these nerves can become stretched, compressed or ripped apart from the spine, causing injury or paralysis. In a very small number of cases of shoulder dystocia (less than 0.1%) the umbilical cord can become trapped against the mother’s pelvis, causing the baby to be deprived of oxygen which can result in cerebral palsy or even death.
The impact of a difficult birth
During Mrs Montgomery’s 36 week antenatal appointment with her obstetrician, Dr McLellan, she expressed concerns about the baby’s size and her ability to deliver the baby naturally. In order to keep these concerns to a minimum, Dr McLellan did not perform a further growth scan when Mrs Montgomery attended for her 38 week antenatal appointment and a decision was made to induce Mrs Montgomery’s labour when she was 38 weeks and 5 days pregnant.
When Mrs Montgomery was giving birth, her baby’s head did not descend down the birth canal and forceps were used to assist the delivery of the baby. At 5.45pm the baby’s shoulders become stuck in Mrs Montgomery’s pelvis whilst only half of his head had been delivered. A general anaesthetic was given to Mrs Montgomery in case the baby had to be pushed back into the womb and a caesarean section take place. Dr McLellan decided that there was no alternative but to deliver the baby and managed to pull the baby free at 5.57pm.
Because the baby, Sam, had been deprived of oxygen during his birth he now suffers from cerebral palsy which affects both arms and legs. Sam also suffered from an injury to the nerves in his shoulder (the brachial plexus) and his arm was paralysed.
The case for negligence
During the first hearing, Dr McLellan told the Court that she had not discussed the risks of shoulder dystocia with Mrs Montgomery because, if she were to discuss this risk, all diabetic mothers would request a caesarean section which was not always required on medical grounds.
At this hearing the Court decided in favour of Lanarkshire Health Board. The Court’s decision was based on their view that not all obstetricians would discuss the risks of shoulder dystocia with diabetic mothers because, although there was a 9-10% risk of it occurring, it could normally be dealt with by a simple medical procedure, such as the use of forceps, and the chance of a very severe injury to the baby was very low.
This decision was made with the assistance of a case called Bolam v. Friern Hospital Management Committee. The Bolam case confirmed that a doctor would not be guilty of providing substandard treatment if the treatment that they provided would also have been used by a reasonable number of doctors specialising in the same area. This had previously been the test relied on in all medical negligence cases.
For instance, if a General Practitioner provided treatment that was not the first choice of treatment but would still have been used by a reasonable number of other General Practitioners, they would not be providing negligent treatment.
Mrs Montgomery appealed against this decision and, at the second hearing, the Court confirmed that doctors must make sure that their patients are aware of any significant risks involved in the treatment that they recommend and any alternative treatments that may be available. This is a big change in medical negligence cases and means that in Mrs Montgomery’s case she should have been advised of the risk of shoulder dystocia because there was a 9-10% chance that it may occur. It was agreed that, if Mrs Montgomery had been told about the risk of shoulder dystocia, she would have requested a caesarean section, which would have avoided the possibility of Sam being deprived of oxygen and suffering from an injury to the nerves in his shoulder.
What medical professionals must do
Doctors and other medical professionals must discuss significant risks and alternative treatments with patients in order to get their patients INFORMED consent. There are, however, three exceptions to this rule:
At Your Legal Friend, we’re here to help
Our dedicated Medical Negligence team has extensive experience in helping families like the Montgomery’s. Laura Morgan, our Director of Medical Negligence, has acted on behalf of many severely brain injured children and recovered multi-million pound settlements on behalf of them and their families. We also have experience in representing bereaved families who have sadly not been able to take their babies home.
If you have suffered a similar event or any type of injury due to medical negligence, then call our experts now to discuss your case. We will ensure that your claim is handled carefully, professionally and sensitively by specialist solicitors, while working alongside medical experts in the field to guarantee the best results for you.
[i] Bolam v Friern Hospital Management Committee  2 All ER 118