By Richard Bogoroch and Leanne Goldstein
December 2, 2003
1. Introduction
In Kungl v. Fallis1, Justice Callaghan made the following comment:
Birth is a very traumatic event. It is dangerous for the baby. The birth process, even under optimal conditions, is potentially a traumatic crippling event for the baby.
For most women, the birth process, although difficult, is an exciting and life-changing experience. The emergence of a healthy baby after many hours of intense labour is truly a miraculous event. For some, however, the experience can be extremely frightening particularly when complications arise. One such complication is shoulder dystocia which, if improperly managed, can have disastrous consequences.
2. What is Shoulder Dystocia?
Shoulder dystocia occurs when the shoulders of the fetus become trapped behind the mother’s pubic bone or pelvic inlet following delivery of the head2. Improper management of shoulder dystocia can have disastrous consequences for the mother and the fetus. Some of the complications that can arise from shoulder dystocia include, brachial plexus injury3, erbs palsy4, Klumpke’s palsy5, clavicular or humeral fractures, fetal asphyxia, fetal death or meconium aspiration6.
3. Medical Malpractice
In a medical malpractice action, the plaintiff must prove that the defendants failed to exercise the reasonable degree of skill and knowledge and the reasonable degree of care expected of a normal, prudent physician of the same experience and standing.
The defendant’s conduct is to be judged in light of the knowledge that ought to have been reasonably possessed at the time of the alleged acts of negligence7. Medical science is a constantly developing and evolving field of practice and the courts have accordingly held that, a defendant is not to be judged with the benefit of hindsight but in light of the prevailing standards of professional knowledge at the material time.8
If a defendant physician holds him or herself out as a specialist, possessing special knowledge or expertise in a specific field, a higher degree of skill may be required of that defendant physician.9 An obstetrician may therefore be held to a different standard than a family physician with respect to the management of pregnancy and subsequent delivery of the newborn infant.
Notes:
1Kungl v. Fallis, [1989] O.J. No. 15
2Sturdee, D., Otal K. and Keane D., Yearbook of Obstetrics & Gynecology, Volume 9. 2001 Royal College of O & G Press, London.
3Brachial palsy is a paralysis or weakness of the arm caused by damage to the brachial plexus. The brachial plexus is the network of spinal nerves (from the lower neck and upper shoulder) that supply the arm, forearm, and hand with movement and sensation. In a brachial plexus injury generally all five nerves of the brachial plexus are implicated resulting in paralysis of the entire arm.
(http://www.nlm.nih.gov/medlineplus/ency/article/002239.htm)
4Erb's palsy is a paralysis of the fifth and sixth cervical nerves (the upper brachial plexus) which usually affects the upper arm and rotation of the lower arm.
(http://www.nlm.nih.gov/medlineplus/ency/article/001395.htm)
5Klumpke palsy is a paralysis of the seventh and eighth cervical and first thoracic nerves (lower brachial plexus) which usually affects the hand.
(http://www.nlm.nih.gov/medlineplus/ency/article/001395.htm)
6Meconium is the medical term for the first feces of the newborn. Aspiration occurs when the newborn inhales the meconium mixed with amniotic fluid either in the uterus or just after delivery.
(http://www.nlm.nih.gov/medlineplus/ency/article/002262.htm)
7ter Neuzen v. Korn, (1995) 3 S.C.R. 675 at 696-7
8Roe v. Ministry of Health, [1954] 2 All E.R. 131 (C.A.)
9Crits and Crits v. Sylvester et. al (1956) 1, D.L.R. (2d) 502 (Ont. C.A. ), aff'd (1956), 5 D.L.R. (2d) 601, [1956] S.C.R. 1991 (S.C.C.)
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Shoulder Dystocia and Obstetric Liability: Effectively Avoiding Litigation