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The Devil Can Be In The Detail – Litigation in Obstetrics and Gynaecology

Medico Legal

by Mr Matthew Long

Medico-legal claims made for breach of duty and causation in the provision of care for women’s health issues and treatments are an important area of clinical negligence litigation. The NHS Litigation Authority’s review of “Ten Years of Maternity Claims” published in 2012 reported that obstetrics and gynaecology accounted for the second highest number of claims made to them. The greatest number of claims made was in “surgery” which included all surgical specialisms as well as orthopaedics. However, despite being second in the number of claims made, obstetrics and gynaecology gave the greatest value of claims paid out. During the 10 year period, over 13,000 claims were made with a total payout in excess of £5.2 billion of which 5,087 claims were in maternity alone with a total
value of £3.1 billion.

Analysis of the figures shows that the three commonest causes for a maternity related claim to be made were those relating to the management of labour, caesarean section and cerebral palsy with rates of 10.65%, 14.05% and 13.24% respectively. The claims for the management of labour and cerebral palsy
contributed to 70% of the total overall cost of maternity claims.

The average birth rate in England and Wales over the 10 years reported was 550,000 per annum, which means that less than 0.1% of deliveries resulted in a claim being made. This seems surprisingly small given the nature of the events that can occur during pregnancy and, in particular, during the delivery of the baby. Thus, there are fewer claims being made than otherwise could be, especially considering that adverse events in labour and from the delivery are relatively common. This is also borne out by the fact that only 0.7% of incidents reported to the National Reporting and Learning System are legal claims.

All UK obstetric units hold regular review meetings of obstetric emergencies that focus on problematic deliveries, neonatal intensive care admissions, cesaerean section and CTG interpretation. These in house meetings review whether or not good practice has been adhered to and what lessons can be learned to be carried forward for the improvement of care offered. I have been involved in several hundred of these meetings over my 23 year obstetric career and incidents that would not have met a reasonable standard of care do occur relatively frequently. Particular issues relate to the progress of labour including the augmentation of labour with syntocinon; the interpretation of the CTG; the management of the second stage of labour with delivery of the baby and post partum haemorrhage,
including obstetric trauma.

Post partum haemorrhage (PPH) can be a life-threatening event with a very quick loss of a large volume of blood. This blood loss cannot only cause hypo-volaemic shock but also a condition called disseminated intravascular coagulation (DIC). In brief, this is where the blood clotting factors are activated to try to stop the bleeding but become consumed so that the blood looses its ability to clot and therefore promotes further blood loss. This is a very serious condition that can result in cardio vascular failure and death if not treated quickly. Although there is no specific volume of blood loss that triggers this, any loss greater than 1000mls increases the risk of it occurring. The active treatment of DIC is to replace the blood and its clotting factors that have been consumed with transfusions of various blood products. However, the best “treatment” is, of course, to avoid DIC occurring and stop the bleeding before it occurs.

From a clinical negligence point of view, this is highlighted in a case of PPH for which I was instructed to prepare an expert report. The bleeding occurred as a result of vaginal trauma during the delivery. The main area of trauma was at the upper part of the vagina and occurred during descent of the fetal head in the second stage of labour. This could not have been avoided and the management of the delivery of the baby and placenta was appropriate. However, immediately after delivery of the placenta there was brisk blood loss despite the uterus being well contracted. The registrar was called but did not attend until 22 minutes later. It was recorded that another member of the medical staff was called after 8 minutes but refused to attend. Shortly after the registrar arrived the patient showed signs of hypo-volaemic shock. It was another 25 minutes before any attempt was made to stop the bleeding from the vaginal tears at which point there were signs of DIC occurring.

The key point in my report was that in the case of a massive PPH then the time it took for the registrar to attend and attempt to identify the cause of and control the bleeding was below a standard that would normally be expected. This was coupled with the refusal of another member of staff to attend the patient despite this being an obstetric emergency. The additional blood loss during this time could have otherwise been reduced and the DIC prevented with the further blood loss associated with it. Other areas of the Claimant’s care including the delivery, and subsequent management of the DIC were appropriately dealt with. The case was settled with quantum taking into account the 4 days the Claimant spent ventilated in the intensive therapy unit and the post-traumatic stress disorder that followed.

A further case of massive blood loss that I was instructed to report upon was one of post-operative haemorrhage. This followed an uncomplicated laparoscopic (minimal access or keyhole surgery) removal of an ovarian cyst. Following the procedure, the patient developed abdominal pain and signs of bleeding with a high pulse rate and reducing blood pressure. The haemoglobin level at that time compared with the pre-operative one indicated that approximately 1,000mls of blood would have been expected to have been lost. A laparotomy was performed through a transverse suprapubic incision where the area of bleeding was identified and secured. It was noted that 400mls of blood was in the pelvis and a drain was inserted into the pelvis. In the recovery area the drain had filled to 300mls and a second laparotomy was performed through a large midline incision on the assumption that further bleeding was occurring. At the second laparotomy, a further 300mls of blood was identified in the abdomen but no active bleeding points were observed.

My report stated that the laparoscopic procedure had been carried out to a reasonable standard and that the decision for the first laparotomy for the bleeding
was appropriate. However, the amount of blood found at the first laparotomy performed of 400mls was far less than would have been anticipated from the drop in haemoglobin levels and at least a further 600mls of blood would have been expected to have been seen in the pelvic and abdominal cavities. The subsequent bleeding into the drain was purely this additional blood and if this had been recognized the patient would not have suffered the second laparotomy. The surgeons involved should have appreciated this, and I reported that the assessment of the findings at the initial laparotomy fell below that which would be reasonably expected. Again, the case settled.

However, it must be stressed not all complications of obstetric and gynaecological care that occur are the result of clinical negligence. A number will be the result of unfortunate sequelae of a particularly difficult delivery of a baby or operative procedure, all of which have inherent risks. Where an elective procedure is planned, the communication of these potential complications to the patient prior to any intervention through the consent process is essential. These discussions, together with the type of any literature or web based information given, should be clearly documented in the clinical records. Operative records should be detailed especially where something has occurred during the procedure that would not have normally been expected. From a medico-legal point of view this information can provide robust information in defending against a claim where it is alleged that the risks of the procedure were not adequately explained or where a complication of a procedure has occurred. The adage “if it is not documented it did not happen” should be borne in mind as the expert will assume there was a deficiency in care as a result.

Additionally, the medical expert investigating a claim should appreciate that just because he or she would have performed a procedure in a different way, that
this does not mean that that there has been a breach of duty. It is widely accepted that there can be more than one way to manage some clinical situations and
provided that the method used is that which would be reasonably expected from appropriately trained personnel in that discipline, then there has not been a breach of duty.

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