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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Sullivan (A Minor) v. Kiernan & Anor [2004] IEHC 78 (2 April 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/78.html Cite as: [2004] IEHC 78

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THE HIGH COURT

1998/9607P

BETWEEN

EMMA O'SULLIVAN (A MINOR) SUING BY HER FATHER AND NEXT FRIEND COLMAN O'SULLIVAN

PLAINTIFF

AND

PATRICK KIERNAN AND BON SECOURS HEALTH SYSTEMS LTD.

DEFENDANTS

JUDGMENT of O'Neill J. delivered the 2^nd day of April, 2004.

In this action the plaintiff seeks damages for negligence arising out of an injury she suffered in the course of her delivery by the first named defendant, a consultant obstetrician at the second named defendant's hospital known as the Bon Secours Maternity Hospital, College Road in Cork.

It is common case that in the course of the plaintiff's delivery on 20^th January, 1996, she suffered a fractured clavicle and a stretching type injury to her brachial plexus which resulted in what is known as an Erbs Palsy.

The plaintiff is the first child of her parents, the next friend herein her father and her mother Ann O'Mahoney who were married to each other in 1995. The plaintiff's mother is a solicitor by profession.

The plaintiff's expected date of delivery was 27^th January, 1996, however early on the morning of the 20^th January, 1996, she intimated an early arrival. At approximately 5.00 am her mother's waters broke. She contacted the second named defendant's hospital and was given advice. It became apparent coming up to 8.00 that her pregnancy was coming to an end and she contacted the hospital again and was told to come in. With her husband she drove to the hospital and was admitted in the usual way and put into a room or delivery suite. In this room there was a single bed, purpose designed for birthing, washing facilities, a small desk, a bean bag and a CTG machine. This was located just inside the door to the right. There was also a trolley containing the appropriate instruments for delivery and also a trolley containing what is known as a Venteuse machine which is a vacuum machine.

At or about 9.30 the plaintiff's mother had her first encounter with the first named defendant. The plaintiff had not been a patient of the first named defendant during her anti-natal care. She was the patient of a colleague of the first named defendant, a Dr.Corr. Because she came into hospital on a Saturday Dr. Corr was not on duty and the system that was operated in the hospital was that each consultant would be on duty for one weekend out of three or four. The first named defendant was on duty on this particular weekend.

There was controversy as to what happened at this first encounter. It was Ms. O'Mahoney's evidence that the first named defendant did not introduce himself in the ordinary way but stood in the doorway of the room and in an admonishing fashion while waving his finger said that he would commence to induce her if there was not significant progress in her labour.

Although the first named defendant has no recollection of this encounter and indeed has no recollection of any of the events of that day until he was phoned at approximately 11.30 that evening by a midwife, he emphatically denied Ms. O'Mahoney's version of this conversation and it was his evidence that when taking over the patient of another colleague he would be very conscious of the vulnerability of that patient and would be at pains to properly introduce himself and put the patient at ease and that he would never address a patient in a threatening or admonishing fashion as was alleged by Ms. O'Mahoney.

For the duration of the morning Ms. O'Mahoney and her husband spent time in the room during which she had contractions approximately every 20 minutes and also spent time walking up and down the corridor. As the morning progressed it became clear that her labour was not progressing with adequate speed and a decision was made to induce her labour by infusing her with a drug called Syntocinon. The first named defendant explained this decision on the basis that after the waters break there is a risk to the baby of ascending infection if the labour continues in excess of 24 hours and to avoid that risk he decided to commence induction. At 12.00 the plaintiff was commenced on this drug intravenously and thereafter her contractions came much quicker. She continued to ambulate between the room and the corridor but it was quite clear from the evidence that her pain and discomfort greatly increased with the increasing frequency of the contractions, to the extent that by 2.00 pm or thereabouts she could bear it no longer and requested an epidural. The epidural was put in place at 2.35 and at 2.59 an electrode was attached to the baby's scalp to monitor its heartbeat from then on. The monitoring of the heartbeat was demonstrated on the CTG machine and could be seen in the form of a trace, which has been put in evidence.

As a result of the epidural the plaintiff was no longer able to use her lower limbs and hence was confined to her bed from then on. In addition the plaintiff would of course have had no sensation in the lower part of her body. During the afternoon Ms. O'Mahoney slept for some time as did her husband on the bean bag. Getting on into the evening after 6.00 her labour began to progress more rapidly, with her cervix dilating much faster. At 9.00 or thereabouts Ms. O'Mahoney had a telephone conversation with her brother and about an hour later another with her mother and it was clear from the evidence that at that stage she was in good form and no doubt full of anticipation. Her husband was in a similar state of mind though probably somewhat more nervous than Ms. O'Mahoney.

By 11.00 Ms. O'Mahoney's cervix was fully dilated and she entered the second stage of labour namely the active stage. The midwives who were attending her at this stage asked her to push but because of the epidural she felt she was unable to do so and after some time devoted to these, either futile or ineffective efforts, she heard one of the midwives say something to the effect that they would have to get help. It is common case that the first named defendant was rung at home by a midwife at approximately 11.30 and advised that the delivery was not progressing satisfactorily and that Ms. O'Mahoney would need assistance to achieve delivery. The evidence of the first named defendant was that the midwife in this conversation cited dips on the CTG i.e. in the foetal heartbeat as a cause of concern in the context of the ineffectiveness of Ms. O'Mahoney's efforts to push.

At this point it is to be noted that nothing in the care of the plaintiff or Ms. O'Mahoney up to this point gives rise to any complaint relative to the injury suffered by the plaintiff or the issue of negligence. As mentioned earlier Ms. O'Mahoney did complain about the manner of her initial encounter with the first named defendant but whilst that might be a matter which would give rise to a sense of grievance it does not appear to me to be directly relevant to the issues which must be resolved in this case.

The first named defendant arrived into the delivery room at 11.30 approximately and from that point in time until the delivery of the plaintiff which is recorded as occurring at 11.45 there is a very serious conflict between the evidence of those who participated in the process and who have any recollection of it. In this regard one of the midwives Ms. Geraldine Mulcahy was called to give evidence but she had no recollection of the events themselves and in giving her evidence was solely relying upon the documentary records.

The evidence of Ms. O'Mahoney as to what happened during this quarter hour or so may be summarised as follows.

She was lying on the bed in the dorsal position i.e. on her back. She thought her back was at an angle of 50 or 60 degrees but at any rate in a relatively upright position resting against the back of the bed which was angled outwards and she was propped up on pillows. Her knees were drawn upwards so that her feet rested on the surface of the bed. She had no control over her legs because of the epidural and it was necessary for one of the midwives to hold onto one knee and for her husband to hold onto the other knee. Apart from saying something to the effect "let's get that baby out", not specifically to Ms. O'Mahoney but to all in the room, there was no other conversation from the first defendant and no discussion with Ms. O'Mahoney of what was to be done. She did not notice what the first named defendant was doing away from the bed but when he approached the bed she was aware of the Venteuse machine. Her evidence was that the first named defendant carried out an episiotomy. She was aware of the machine being started and it was her evidence that the plaintiff was out within a matter of two minutes or maybe less from that point in time. She described the movement executed by the first named defendant to get the baby out as a sudden yanking, a yanking back procedure and she described the plaintiff as being "yanked out". She said that the first named defendant commented, "what a well nourished baby" and she heard somebody say "I heard something cracking there" and "we will have it x-rayed." She then said she heard the first named defendant say to one of the midwives "I should have taken you up on that bet about the baby being delivered before midnight." She was adamant that from the time the Venteuse procedure commenced to the delivery of the plaintiff was only two minutes, a very short time. She was adamant in her evidence that throughout this procedure her position on the bed was not altered and no-one applied any pressure to her supra pubic area.

The evidence of Mr. Colman O'Sullivan concerning this 15 minute period in summary was as follows.

He recalled the first named defendant washing his hands after he entered the room i.e scrubbing up and that he didn't address Mr. O'Sullivan at all. Mr. O'Sullivan was sitting by the side of the bed on his wife's left hand side. He was holding her hand and trying to reassure her although he felt he was more nervous than her. He said there were two nurses with the first named defendant, one was opposite him by the side of the bed and there was a nurse in the background. He described his wife as being propped up with pillows on the back rest of the bed. He said the first named defendant brought a device which he now knows to be the Venteuse towards the bed and that he made an incision or cut in his wife low down and he then applied the vacuum. He said he was asked by the first named defendant to hold her knee and he did that with his left hand; and that her legs were falling all over the place. He said her knees were upright and her legs were on the bed and that her feet were on the bed. He said that he was not applying any pressure he was merely holding her knee. He remembered hearing the venteuse; he heard a suction, a kind of sucking sound as it came off and the whole procedure was very quick. He said his wife's position on the bed was not altered during the entire procedure and there was no contact between anybody present and his wife's abdomen or supra pubic area. He said after the removal of the vacuum the baby was out within about an minute or a minute and a half, maximum, and he heard a crack, a distinctive crack and that the first named defendant worked very quickly. He said he had seen the vacuum being placed on a metal kind of table. He could hear it and after that he said that the baby was pulled out in less than a minute. He said the crack he heard was as you would crack a chicken bone or a twig; that it was like a bone and was very distinctive. He said he mentioned it straight away to the first named defendant and he responded by saying "we'll have it x-rayed." He described what the first named defendant did as working with his hands, as very quick, very physical and the use of force.

The first named defendant's evidence in relation to this period is in summary.

He said on coming into the room and looking at the CTG, he saw at a glance what concerned the midwives. He then walked around the bottom of the bed up to where the wash-hand basin is. He washed his hands and put on gloves and then went over to the bed. Ms. O'Mahoney was in a semi-sitting position with a midwife supporting her right knee and the other midwife supporting the left leg with the knee bent up. The first named defendant moved in and asked the nurse holding the right leg to let him in and he supported Ms. O'Mahoney's right foot on his right iliac crest. He then did a vaginal examination to see where the head was and to make sure that the cervix was fully dilated. This examination was done by fingers. He then inserted the vacuum cup. As a result of the vaginal examination and what he had been told he concluded that the head was low enough for a safe or easy delivery, and he made a decision that he should move to assist the delivery, by means of a vacuum assisted delivery. His reasons for opting for an assisted delivery were that there were dips in the foetal heart rate; Ms. O'Mahoney had been pushing for a 20 or 25 or 30 mins and had not made any progress and had become exhausted, and thirdly her temperature was increasing. He recalled putting on the vacuum onto the baby's head at which stage he said to Ms. O'Mahoney "your baby is getting tired and we are going to give you a little bit of a hand". Having put on the vacuum he nodded to the midwife to press the switch which operates the vacuum. He then waited for the next contraction as felt by the midwife and when that commenced he asked Ms. O'Mahoney to push and at the same time he applied traction pulling in a downward manner. He said the duration of the contraction lasted for three pushes and he pulled on those three pushes and succeeded in delivering the plaintiff's head. As the baby's head was crowning he then did the episiotomy. During all of the foregoing procedure Ms. O'Mahoney was reclining on the bed at an angle of about 30 degrees with both knees flexed with the right foot on the first named defendant's side resting on his iliac crest and with the left foot on the midwives side or her iliac crest. The bed on which Ms. O'Mahoney was lying was a standard electronic labour ward delivery bed. The full bed was in use, i.e. the bottom third had not been removed. When the head was delivered the vacuum would have come off and the midwife would automatically switch off the machine. The vacuum dies and the cup just falls off the head. The vacuum was then put away on the trolley. He waited for the next contraction as felt by the midwife and when that happened Ms. O'Mahoney was asked to push but there was no movement whatsoever of the anterior shoulder. He said he remembered that still, with fear. There was no movement of the shoulder. Normally the anterior shoulder just pops out. This is something you normally see and feel and there would normally be no resistance anymore and the baby is flowing. You know that feel in your hands. In this case he felt no movement whatsoever and this is a horrible feeling. There is no give whatsoever and he agreed with the description of it as being like a brick wall or being stuck firm. It is a horrific feeling and you feel the cold going down your back with it. This indicates that you are into a scenario of shoulder dystocia, with the various possibilities that may ensue ranging from the delivery of a healthy baby of a healthy mother to possible brain damage for the baby or the death of the baby. He said he made a mental diagnosis of shoulder dystocia and quietly intimated this to the midwife assisting opposite him. He said he quietly advised the midwife that they would move Ms. O'Mahoney into the left lateral position. He put his hands under her bottom pulled it towards her and tilted her over towards the left. He then said to the midwife "supra pubic pressure". This was carried out in a quite but rapid manner so as not to frighten everybody in the labour-ward. He said they then hyper flexed the knees which were already fairly flexed, the nurse pressed supra pubicly and the baby came out with, what the first named defendant thought was a minimum of traction. When the midwife applied supra pubic pressure he said he could hear a crack which he reckoned was the clavicle fracture. As he heard the crack the anterior shoulder came out and it was just a free flowing normal delivery at that stage. He then applied the umbilical clip to the chord and cut the umbilical chord, lifted the baby up and handed her over to Ms. O'Mahoney. He emphatically denied ever saying anything about taking a bet on the baby being out before midnight. He said that he moved Ms. O'Mahoney onto her left side because that was a movement he had always reckoned as being the McRoberts manoeuvre which is a manoeuvre to straighten up the pelvis in relation to the spine and to give you more room; to take the normal lordosis out of the spine and to take away the sacral prommentary. By turning the patient onto the left lateral position you can achieve the same as in its dropped position, when you get the two knees up and you can also avoid venacaval compression or a drop in blood pressure if you have the mother in the left lateral as opposed to when she is lying on her back. The physics of the movement of the legs in relation to the effective opening up of the pelvis is the same, irrespective of whether you do it with the mother on her back or on her side. He said the manoeuvrable McRoberts is the hyper flexion of the thighs and the opening up of the pelvis by doing so. He said the manoeuvre thus performed on the day, in fact worked. He said that the crack which he heard and the supra pubic pressure and the delivery all happened together, there wasn't a split between either of them. The first named defendant emphatically denied using a "yank" that he would not dare treat a delicate child like that. He said that he had got over the shoulder dystosia by the first line of treatment i.e. the supra pubic pressure and McRoberts in the left lateral and the baby came out and gave a hearty cry and picked up well. He said it never for a moment dawned on him that he had used sufficient traction to cause Erbs Palsy and when he heard subsequently that the plaintiff had Erbs Palsy he was very dismayed by this. After the delivery of the plaintiff he attended to the third stage of labour i.e. the delivery of the placenta and wrote his note of the delivery. For this purpose he obtained the time of delivery from the midwife. This time was taken from the clock on the wall in the delivery room. He wrote his note in the delivery room at a little desk in the corner where the notes are all kept. There is also a clock built into the CTG machine, a Hewlett Packard clock but this was not synchronised with the clock on the wall. The clock on his machine is not easily visible. It can be brought up by means of pressing a button and it comes up flashing. When he had finished with Ms. O'Mahoney and the plaintiff, the first named defendant went home as he had no more deliveries that night. He calculated the time from the delivering of the baby's head to the full delivery to be about seven minutes. He said that the traction he applied was the normal traction that would be applied to a normal delivery when the shoulder is coming anyhow and that he said the plaintiff came out quite easily with that.

As mentioned earlier and it is clear from the foregoing there is a very substantial conflict between the evidence of the first named defendant and of the parents of the plaintiff as to what happened in the course of the delivery of the plaintiff.

Having carefully considered all of the evidence I have come to the conclusion that the evidence of the parents is to be preferred to that of the first named defendant for the following reasons.

As of 1998 the evidence established that the first named defendant had either no recollection of the process of the delivery or could only recollect it in very broad terms. As a result of discussions with the legal advisors and others his evidence was that he recovered a detailed memory so as to enable him to give the very detailed evidence concerning the entire process of delivery.

I am satisfied that in the detailed account given by the first named defendant in his evidence of the delivery there was a large element of reconstruction of events based upon his professional knowledge and expertise. I don't for a moment suggest that the first named defendant sought to deliberately mislead the court, on the contrary I am quite satisfied that he made a conscientious effort to give the court as full and detailed account of what happened during the delivery as he could. However I am left with the unshakeable impression that much of that detail resulted from a reconstruction of events, in a genuine effort by the first named defendant to recover what he perceived to be an actual memory of the events. In that circumstance I find myself unable to rely upon his version of events.

For the parents of the plaintiff the birth of their first child was an event which was likely to be etched clearly in both their memories. I am quite satisfied that neither of them was deliberately telling untruths or, perhaps in the interests of their daughter embellishing or exaggerating their evidence. Whilst each of them described the actual delivery in different terms there was a substantial convergence between their accounts. On one very important particular they were in exact agreement, namely that the position of the mother was not changed to the left lateral position and that supra pubic pressure was not applied by anyone. Insofar as the manner of the delivery and the speed of the delivery was concerned while as I said they used different terms to describe it, the substance of their descriptions appears to me to be the same. Ms. O'Mahoney described it as a yank or a pull and likened it to the tug on the starting coil of a lawnmower. Her husband described it as very physical with the use of force. Both of them were in agreement that it was extremely rapid, Ms. O'Mahoney saying that it was not more than two minutes from the start of the Venteuse procedure to complete delivery and her husband saying, less than a minute and a half from the delivery of the head.

In my view having regard to the nature of the event, they could not be mistaken about the change of position from the dorsal to the left lateral. Either they are deliberately lying about that, or else in my view, it is true. As said I do not think they were telling deliberate untruths. That being so I am satisfied that their evidence in that regard is correct and that the position of Ms. O'Mahoney was not changed from the dorsal to the left lateral during this procedure. I am also satisfied that they are right, that the supra pubic pressure was not applied.

As to the speed of the delivery there is corroboration of their evidence in the time recorded for the delivery and also in the times recorded on the CTG trace.

The note made by the first named defendant after the delivery recorded the time of delivery as 11.45 pm. This time was apparently taken from the wall clock. The evidence established that this wall clock was not synchronised with the clock in the CTG machine and there was a suggestion that there was a substantial discrepancy between these two clocks which would have the effect of extending the time available for the delivery beyond the apparent three minutes from the taking off of the electrode from the baby's scalp which is recorded in the trace in the CTG as 11.42 approximately. However it was the first named defendant that gave evidence that when the electrode was taken off, the foetal heartbeat would have continued to be monitored using an ultra scan device attached to the mother's abdomen and that this accounted for the continuing faint trace on the CTG trace up to and just beyond 11.44. Dr. Turner gave evidence that as soon as the plaintiff was delivered the CTG machine would be turned off terminating the trace. The trace would be torn from the machine at or about that point and placed with the plaintiffs records. An examination of the trace demonstrates that it was torn off just beyond the 11.46 line. As said earlier the last discernable trace that appears to be foetal heartbeat is just at and just beyond 11.44. Dr. Turner an expert called for the defendants explained in his evidence and I accept that the explanation, that the ultra sound does not record and trace on the CTG machine the foetal heartbeat as clearly as the electrode for the reason that it is attached to the woman's abdomen somewhat loosely and in the activity of delivering and having regard to the changing position of mother and baby does not produce as clear a trace as the electrode would. In my view that is the probable explanation of the faintness of the trace from 11.42 up to 11.44. Dr. Turner also gave evidence which I accept that once the baby is delivered that terminates the recording of the foetal heartbeat by the ultra sound. It is certain that the trace in the CTG was torn off just beyond 11.46 line and I infer from that, as a matter of probability, the baby had been born shortly before that.

All of this leads me to the conclusion that as a matter of probability there was no discrepancy or difference of any significance between the time recorded on the CTG clock and the time recorded on the wall clock the latter being entered as the time of delivery in the record.

As said earlier, in my view this evidence corroborates the evidence of the parents as to their impression that the delivery took place very rapidly, in fact in all probability in the space of about three and a half to four minutes at most from the removal of the electrode from the baby's scalp to enable the Venteuse cup to be applied.

I am satisfied therefore that I should accept the evidence of the parents of the plaintiff as to being a reasonably reliable impression of the speed at which the delivery took place.

There are two other items of evidence which in my view tend to corroborate or support the evidence given by the parents of the plaintiff.

The first of these is the note made by the first named defendant shortly after the birth of the plaintiff and it is in the following terms.

20^th January, 1996, 23.45 vacuum assisted delivery because failure to progress in second stage and CTG dips difficulty delivering right shoulder?. Fracture clavicle.

This note was made shortly after the deliver and I accept its contents as a reflection of the state of mind of the first named defendant as to what occurred during the delivery. There are a number of features of this note which appeared to me to be remarkable. The first of these is the fact that the express diagnosis of shoulder dystocia is not so described. The evidence of all of the medical experts in this case and of the first named defendant himself described the condition of shoulder dystocia as a very definite state of affairs and a very particular and explicit diagnosis which was described by all of them, and also universally in the literature which was put in evidence in the terms "shoulder dystocia", from what I have heard of this condition from all of these doctors from having considered this literature it appears to me to be remarkable that the first named defendant would have noted it in the record as being merely "difficulty delivering right shoulder". This note, in this regard, tends to persuade me that whatever difficulty the first named defendant perceived himself as encountering in relation to the right shoulder during this delivery, that he did not at that time form the view that there was a shoulder dystocia nor did he make that diagnosis at that time.

That brings me to the next feature of the note which I consider to be remarkable and that is the fact that no mention at all is made in the note of the procedure used to overcome shoulder dystocia i.e. the McRoberts movement in the left lateral position together with supra pubic pressure. One would have thought it was of some importance to record what manoeuvre was used to overcome a problem such as this because that information might be of considerable relevance to the management of a subsequent delivery so that an obstetrician dealing with the later delivery would know what had either succeeded or failed.

The first named defendants evidence was that it was not the practise to note the particular manoeuvre used and he went on to say that he had been trained to make short notes rather than long notes on the basis that shorter ones are more likely to be read and that in a hospital which wasn't a teaching historical shorter notes of the kind made here were the norm. He acknowledged that in a teaching hospital there was tendency to write essays.

In my view the universal desirability of brevity simply fails to explain an omission such as this from this note. A single short additional sentence was all that was required, to say that shoulder dystocia had been encountered and was overcome by the McRoberts manoeuvre in the left lateral position with supra pubic pressure.

The contents of this note tends to persuade me that the parents of the plaintiff are right in their recollection that Ms. O'Mahoney was not changed into the left lateral position nor was supra pubic pressure applied.

The final piece of evidence I wish to draw attention to in this regard is the injury suffered by the plaintiff. The injury to the brachial plexus was, I am satisfied caused by traction on the head of the plaintiff, applied during her delivery. The first named defendant's evidence was, that he only applied normal gentle traction and that the baby came easily. I am satisfied that the injuries suffered by the plaintiff was caused by a force greatly in excess of normal gentle traction and in my view this injury is inconsistent with the evidence of the first named defendant as to the traction applied by him. No explanation other than an excess of traction was advanced to explain this injury and I am satisfied, on the balance of probabilities, that this injury together with the fracture clavicle was caused by the application of excessive traction to the head of the plaintiff during delivery. That state of affairs is consistent with the descriptions given by the parents of the actions of the first named defendant in delivering the plaintiff.

I have come to the conclusion, therefore, that the plaintiff was delivered in the space of about four minutes or less from the removal of the electrode from her scalp, in all probability, on the first contraction after the delivery of the head in circumstances where in my view the first named defendant had not formed the view that there was as full shoulder dystocia and where he moved to overcome such difficulty as he perceived to be there by the application of excessive traction, without resorting to any variant of the McRoberts manoeuvre or the application of supra pubic pressure. The excellent condition of the baby as reflected in the Apgar score of 9 at 1 minute tends to reinforce that conclusion by indicating that the plaintiff was not deprived of oxygen for any significant period of time and certainly not for the span of time some seven minutes that would have been required to have put Ms. O'Mahoney in the left lateral position and reopen the McRoberts manoeuvre with delivery on a subsequent contraction.

Having reached this conclusion, it necessarily follows that the standard of care given by the first named defendant in the delivery of the plaintiff was lower than the standard of care to be expected from a person of his rank in his profession and hence it was negligent.

Although that conclusion is sufficient to dispose of the issue of liability in the case, in deference to the expert evidence given by the very eminent experts called on both sides namely Mr. Clemens and Mr. Johnson for the plaintiff and Dr. Turner and the defendants, I feel I should express an opinion on the main point of difference between the plaintiff's expert and the defendants expert.

This related to the appropriate procedure or manoeuvre to be followed or applied where a shoulder dystocia is diagnosed. Mr. Clemens and Mr. Johnson were adamant that since the mid 1990's or 1994 perhaps at the latest, the only manoeuvre or position to be used consistent with good practice was the McRoberts manoeuvre in the dorsal position. Indeed Mr. Johnson forcibly expressed this opinion to the extent of saying that a failure to use the McRoberts manoeuvre in the dorsal position post 1994 or thereabouts would be negligence on the part of an obstetrician.

The defendant's expert Dr. Turner vehemently disagreed with this view asserting that the essence of McRoberts was not a position but a manoeuvre, the essential feature of which manoeuvre was the hyper flexion of the thighs so as to tilt the pelvis upwards and straighten out the birth canal and remove the promontory of the sacrum. It was Dr. Turner's opinion that this manoeuvre could be achieved equally as well either in the dorsal position or in the left lateral position and either position was acceptable and it was a matter for clinician preference, as to which would be used. He also vehemently contended that the literature available internationally on the topic did not prescribe or require the use of the dorsal position for the McRoberts manoeuvre and he stressed that cultural differences or preferences could influence the choice of position opted in different parties of the world.

There is no doubt from the evidence of all three experts that the objective to be achieved by the use of this manoeuvre in either position was the same, namely to straighten up the birth canal. This necessarily involves in addition to the upward titling to the pelvis achieved by the hyper flexion of the thighs, also the changing of the normal lordosis of the spine so that the normal inward S bend is moved in the opposite direction outwards, i.e. moving the curvature of the spine in the opposite direction which has the effect of moving the sacrum backwards.

I fail to see why the objectives of this manoeuvre cannot be achieved in the left lateral position. Indeed I would be inclined to the view that by keeping the back flat on a flat surface would tend to preserve the normal lordosis of the spine particularly if the shoulders are flat on that surface, whereas in the left lateral position, I would be inclined to the view that the upper part of the back could be brought forward more easily, thereby achieving an outward curvature on the lower part of the spine.

The literature on the subject which was put in evidence by both sides does not appear to me to establish in the unequivocal way asserted by Mr. Clemens and Mr. Johnson that the dorsal position was the prescribed position for the McRoberts manoeuvre, excluding any other position. Indeed far from this, it would seem to me from a reading of the literature, a significant portion of it contemplates the use of the left lateral position at the very least as an initial position for the manoeuvre.

I would be of the opinion therefore that the use of the left lateral position for the purposes of the McRoberts manoeuvre is an acceptable professional practice for an obstetrician when confronted with shoulder dystocia and I cannot avoid the view that the opinion of Mr. Johnson in particular that the use of the left lateral position post 1994 was negligent for an obstetrician, is a somewhat extravagant assertion.

Damages

The plaintiff suffered a fracture of the right clavicle and an Erbs palsy on the right side. The fractured clavicle was of little significance though I am sure it must have caused considerable pain to the plaintiff in the first few days of her life. The Erbs palsy is a very serious injury. This was not, understandably, detected very early on. However as the months went by it became clear that there was a gross dysfunction of the plaintiff's right arm and shoulder. Erbs palsy was diagnosed in due course and the treatment prescribed was physiotherapy. I am quite satisfied from the evidence that from early in her life, the plaintiff had a great deal of physiotherapy in the Lavena centre in Cork. Unfortunately however this brought about very little in the way of improvement and by chance when the plaintiff was approximately a year and a half old Ms. O'Mahoney learnt from an article in a French magazine that there was a surgical procedure available to help correct the problem. She got in touch with Mr. Ralph Birch an expert with a particular interest in this problem and in due course late in 1997 the plaintiff was taken to London for surgery. This surgery involved correcting the dislocation of her shoulder by relocating the top of the humerus into its socket. After the surgery the plaintiff was placed in a body cast and I have no difficult in accepting that that was a source of grave discomfort and distress to the plaintiff and no doubt also her parents. Whilst that procedure did produce some improvement it became apparent that a further operation would be needed. This was put off until the year 2000 when the plaintiff was approximately four and a half years old. Again she was taken to London and a procedure was carried out. This involved fracturing the humerus on the right side high up and turning the shaft of the bone around and repining it together again so as to achieve a better range of movement in the right limb. At the request of the parents a plaster cast similar to the previous one was not applied and that considerably eased the post operative care of the plaintiff. After this procedure it would appear to me that the plaintiff began to progress much more rapidly and achieved considerable improvement which has confirmed to date.

I had the benefit of seeing the plaintiff and having demonstrated by her precisely what her current situation is and what her current difficulties are. I have also heard the evidence of Professor Carlstead and also of Ms. Barry occupational therapists and of Mrs. Feely another occupational therapist, and with the benefit of all of that evidence it is apparent to me that notwithstanding the improvements to date, the plaintiff is left with a very significant deformity of her right shoulder and arm and right scapula and has still significant disabilities and these disabilities will continue for the rest of her life with serious consequences for her.

As the matter stands the plaintiff is unable to get her right hand behind her head actively or behind her lower back. She also has difficultly in reaching outwards and upwards. Her right upper limb is weaker and cannot support her own weight as would a normal limb. The dexterity of her right hand is reduced as a consequence of which she does not have normal writing capacity or speed in that hand. She is right hand dominant. The restriction of movement of her right arm does cause her difficult in dressing or in managing her hair and in the future it is probable that she would have difficulty in these activities and in particular in putting on a necklace or earrings or in attaching a bra strap.

When she brings her right arm around in front of her body this tends to cause what is described as winging of her scapula. This is readily apparent with the scapula emerging into significant prominence. The appearance of her right shoulder is not the same as the left. It does not have the same square appearance but is rounded downwards. In addition she has quite a significant scar running along the front of her right shoulder.

None of these conditions are likely to significantly improve in the future. The plaintiff is now somewhat disabled in leisure and sporting activities and cannot manage the normal range of these activities. In that regard she is separated from her peers and that will continue.

Luckily the plaintiff is a very bright child and so far is doing very well academically and is top of her class. I take it as a probability that with the support of her parents and good schooling she will continue to enjoy academic success and it is a probability that she will attain the appropriate standard for a third level education and her career will progress on that basis. It is impossible at this stage to say what choice of career she would make in that context, but what is significant from the damages point of view is that there are a number of careers that she would be excluded from because of her disability. These include membership of An Garda Siochána or of the defence forces, an airline pilot, those branches of the medical or paramedical professions which require some degree of balanced physical strength and manual dexterity, the veterinary profession, and architecture because she would not be able to climb ladders or scaffolding.

At this stage it cannot be said as a matter of probability that the plaintiff will suffer any loss of earning capacity as a result of her disability but what can be said as a matter of certainty is that the range of choice of career available to her will be significantly reduced and that is a fact which must redound in general damages.

It must also be anticipated that when she reaches her teenage years there is a likelihood of considerable stress because of the disability and also the appearance of her shoulder and scapula. I have no doubt but that with the support of her parents she will overcome whatever difficulties which may arise in this area but nevertheless it is to be anticipated that these difficulties will arise and she must be compensated for them.

Approaching the assessment of general damages on the traditional basis of assessing damages to date and for the future I would award the plaintiff the sum of €75,000 in respect of general damages to date. In arriving at that figure I bear in mind that to a very large extent the plaintiffs childhood to date has been dominated by this injury and she has suffered a great deal of pain and distress from all of the physiotherapy and operative procedures required to deal with it.

For general damages for the future I would award the plaintiff the sum of €175,000 making a total of €250,000. In addition there is an agreed sum for special damages in the amount of €6,766.02.

A claim was also made in respect of the cost incurred for the surgical treatment of the plaintiff in respect of the two procedures carried out in London. Evidence was given in regard by an official of the Southern Health Board and it was my understanding of the evidence of this witness that once these procedures were not available in Ireland that there was a right or entitlement to have them provided and paid for by the health board and hence there was no obligation to reimburse the health board for the cost of these procedures. On that basis I have reached the conclusion that this aspect of the claim should be disallowed.

In conclusion therefore there will be judgment for the plaintiff for the sum of €256,766.02.