Clinical Review

Shoulder dystocia: What is the legal standard of care?

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It’s your job to educate the jury that, even in the best of hands, permanent brachial plexus injuries can occur


 

References

No matter how excellent the care you provide, you have good reason to worry about shoulder dystocia. It is one of the most difficult and frightening complications, and is essentially unpredictable and unpreventable. It can happen even in apparently routine deliveries, and can cause permanent injury to the child despite the best possible care by experienced obstetricians.

If permanent injury occurs after shoulder dystocia, it can also trigger a lawsuit that can last for years and end in a large jury verdict—even if you handled the case with textbook perfection. Lawsuits involving brachial plexus injuries following shoulder dystocia are now the second most common type of lawsuit in obstetrics, exceeded only by those due to neurologic damage from birth asphyxia.1 Brachial plexus injury is often difficult to defend in court and results in scores of millions of dollars in damages each year. The plaintiff is usually a lovely child with an obvious and permanent injury, and the defense is typically an undocumented claim that the obstetrician applied no undue force at delivery.(Sidebar)

Given the difficulties of knowing when shoulder dystocia will occur, how best to resolve it, and whether a claim is likely, how can we prepare for this event? What is the accepted standard of care? This article answers these questions by surveying the evidence on these aspects of management:

  • risk factors for shoulder dystocia
  • how to choose mode of delivery
  • specific labor-management practices
  • the 4 most widely used maneuvers to resolve shoulder dystocia
  • what information the documentation should include.

No single “standard of care”

In many states, the term “standard of care” has a specific legal meaning, but in most of the United States—and to most physicians— the term means care that would be rendered by the majority of well-trained individuals. Complicating this definition is the fact that medicine often offers no single “right way.” Thus, it may be more appropriate to speak of “standards of care”: the range of therapeutic choices a reasonable practitioner might decide to use.

The traction reaction: Why plaintiffs focus on “force”

Traction is the most used and abused of terms in shoulder dystocia lawsuits. Many plaintiff expert witnesses claim that traction should never be applied to a baby’s head during delivery. Other “experts” claim only “gentle” traction is warranted. These statements are designed to support the most frequent contention against obstetricians when permanent brachial plexus injury occurs: As there is an injury, it must have been caused by a doctor or midwife who used “excessive traction” to deliver the baby. This statement is usually made without defining “excessive” and without evidence that more force than necessary was used.

“Excessive” vs “minimum necessary” traction

Routine or “moderate” traction is used in most deliveries. The birth attendant almost always depresses the fetal head and applies a moderate amount of traction to it to help the baby’s anterior shoulder slide beneath the mother’s pubic bone.38 The only time traction is unnecessary is when the expulsive forces of the mother are so strong or uncontrolled that she pushes the baby out entirely on her own.

There is ambiguity—often contrived—about what exactly constitutes mild, moderate, routine, and “excessive” traction. No study has ever been published that accurately and unambiguously quantifies the amount of force used in actual deliveries.

Once shoulder dystocia is diagnosed, further attempts at routine traction without the use of other maneuvers should be avoided. At best these attempts are unavailing. At worst they serve only to keep the anterior shoulder lodged behind the maternal symphysis.

Much misinformation surrounds the role of traction during the McRoberts maneuver and other efforts to resolve dystocia. The reality is simple: An obstetrician cannot determine whether a maneuver has released the anterior shoulder unless moderate traction is applied after the maneuver to see if the baby can be delivered. Although extreme force at this or any point is not appropriate, moderate traction is entirely appropriate.

“Excessive traction” is an oxymoron, although plaintiff lawyers often use the term. An obstetrician uses a given amount of force in attempting to free a stuck shoulder. Once the shoulder is freed, no more force is applied. Thus, by definition, “excessive force”—more force than is necessary to deliver the baby—is never used. The proper term to describe the amount of force applied by a physician to resolve shoulder dystocia is “minimum necessary traction.”

Injury can follow a traction-free delivery

For many years, obstetricians familiar with shoulder dystocia have claimed that brachial plexus injuries can occur even in the absence of significant traction—either in utero or as a result of the natural forces of labor. Yet plaintiff attorneys and expert witnesses have contended that all brachial plexus injuries are the result of someone pulling “too hard.”

A recent case reported by Allen and Gurewitsch39 settled this question once and for all. They describe a delivery in which a patient requested no intervention of any kind. Despite no hand having touched the baby during delivery—thus, no “excessive traction” having been applied —the baby suffered a brachial plexus injury. This case proved that brachial plexus injuries can occur spontaneously and are not necessarily caused by traction.

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