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Litigation Insights - Perspectives from a Midwifery Expert Witness

Medico Legal

by Angela Cook, angela.cook@expertwitnessmidwife.co.uk

by Angela Cook, This email address is being protected from spambots. You need JavaScript enabled to view it.

 The birth of a child should be a wonderful, lifechanging time for a mother and her whole family. It is a time of new beginnings, of fresh hopes and new dreams, of change and opportunity. It is a time when the experiences we have can shape our lives and those of our babies and families forever. This vision is addressed to the women of England within the National Maternity Review as part of the NHS Five Year Forward View (NHS England 2016). Unfortunately, this view is not reflective of the midwifery care provision for some women birthing in the UK.

Indeed, the maternity services, like the rest of the NHS, are facing many challenges, including severe financial constraints, increasing demands and expectations and continuing staff shortages. This gathering storm is threatening the safety, quality and sustainability of maternity services in England (RCM 2017). Furthermore, the rising costs of clinical negligence are a significant concern to the NHS. By 2019/20 costs are expected to rise to £2.691 billion. This includes claims for seriously injured patients, such as those who suffer brain damage at birth (NHS Resolution 2016).

As part of personal litigation insights obtained during Midwifery Expert Witness practice, a range of key topic areas emerged over the compilation of over 100 reports for both Defendant (NHS) and Claimant solicitors. Whilst specific individual details cannot be revealed without consent (NMC 2015), general thematic analysis revealed a range of issues impacting upon the mortality and morbidity of childbearing women and their babies. This included, though was not exhaustive, of the strongest theme of CTG misinterpretation and of unrecognised antepartum haemorrhage (APH) particularly relating to placental abruption within the context of midwifery telephone triage. In addition, the development of pressure ulcers featured (within the context of a body mass index BMI greater than 30 and the use of epidural in labour), undiagnosed third degree perineal tears, retained placental tissue resulting in secondary postpartum haemorrhage, a failure to recognise the significance of slow insidious vaginal bleeding within 24 hours of birth (primary postpartum haemorrhage PPH) and that which predisposed to maternal collapse and a delay in the recognition of life threatening sepsis.

Furthermore, a range of human factors were identified following an indepth review of the maternity records. Although the majority of these ‘non-technical skills’ involved exemplary multidisciplinary team working, unfortunately there were occasions when poor midwifery leadership and ineffective communication/ teamwork were exhibited and this impacted negatively upon midwifery care provision for the childbearing woman whose condition was deteriorating. Indeed, a very clear message that emerges from the latest national report reviewing maternity mortality in the UK and Ireland, is the endorsement of effective multi-disciplinary care for childbearing women across many medical specialities (MBRRACEUK 2016).

For the purpose of this article, 2 of the above recurrent themes will be discussed, namely related to CTG interpretation and antepartum haemorrhage. Indeed, that which continues to feature most prominently is cerebral palsy and alleged misinterpretation of intrapartum cardio-tocograph (CTG) traces. Whilst fetal heart rate monitoring during labour is a routine procedure in numerous maternity units, it has not yet been proven to reduce perinatal mortality or the incidence of cerebral palsy (Alfirevic et al 2013). Midwives are, of course, at the frontline of CTG interpretation and intermittent auscultation (IA) and it has been suggested that this aspect of their role is the leading cause of strain and pressure (Sholapurkar 2016). Currently, intrapartum fetal monitoring is going through another period of intense scrutiny in the UK.

As such, following careful consideration of the evidence, guidance has recently been revised relating to fetal monitoring during labour (NICE 2017). Midwives are reminded that decisions should not be based upon the interpretation of the CTG in isolation of the woman’s overall clinical context. The updated document advises upon categorisation of traces as normal, suspicious or pathological and, accordingly, a management plan outlined.

CTG Misinterpretation

Although recurrent themes are identified in the literature relating to substandard fetal monitoring such as inappropriate action, technical aspects and record keeping (Talaulikar et al 2014) it is agreed that inability to accurately interpret the CTG features strongly in litigation. Indeed, from personal insights, one aspect of substandard interpretation of CTG traces has occurred primarily as a result of incorrect classification of decelerations. This is particularly in relation to those that have been regarded as ‘early’ (that is benign and occurring with/mimics a contraction) as opposed to more accurately, those that occur following a contraction that are ‘late’ (that is occurring at or after the peak of a contraction. This is significant because late decelerations are a serious sign and reflect that there is compromise to the fetus in relation to oxygenation. An associated rise in fetal baseline rate, to greater than 160bpm, is also significant of the fetus trying to compensate. This can be overlooked when clearly this is a deviation from norm. Ultimately, the revised guidance relating to decelerations are to record:

• Their timing in relation to the peaks of the contractions

• The duration of the individual deceleration • Whether or not the fetal heart rate returns to baseline • How long they have been present for

• Whether they occur with over 50% of contractions

• The presence or absence of a biphasic (W) shape

• The presence or absence of shouldering

• The presence or absence of reduced variability within the deceleration (NICE 2017).

The terms ‘typical’ and ‘atypical’ decelerations are still not recommended in an attempt to avoid confusion. Instead, decelerations are required to be classified as early, variable or late. Further detail may be required, too within intermittent auscultation for low risk women. Indeed, the possible introduction of handheld ‘trace display doppler monitors’ aims to display numerical readouts as well as a fetal heart rate display during intermittent auscultation (IA). These may then be downloaded onto computers and archived in a woman’s electronic records (Sholapurkar 2017).

Ultimately, a really significant point is the need for midwives to understand the physiology of the fetal heart rate in normal labour, confirm normality within fetal monitoring and identify when deviations from norm occur, including timely escalation (NMC 2016). The diagram, as below, illustrates the physiology of the fetal heart rate secondary to such changes in the fetal blood pressure (RCOG 2017).

Clearly current NICE guidance (2017) will require midwives to provide greater clarity relating to decelerations and will provide a more detailed benchmark for escalation to an appropriately qualified health professional (NMC 2016).

One other issue relating to misinterpretation is confusing the maternal and fetal heart rates. Best practice is to auscultate the fetal heart with either a Pinard stethoscope or hand held Doppler prior to commencing electronic fetal monitoring. This is to avoid picking up maternal pulsations instead of the fetal heart. In addition, the maternal pulse should be identified and recorded separately. A sudden significant shift in the baseline or low baseline fetal heart rate (less than 110bpm) suggests recording the maternal pulse rather than the fetal heart rate. A better alternative would be the application of a fetal scalp electrode (Talaulikar et al 2014) following consent (NMC 2015). Personal insights of errors include the fetal heart rate starting to ‘accelerate’ during the second stage of labour. However, a warning is issued that when such accelerations occur with contractions they are likely to be maternal heart rate recordings and need to be verified (Talaulikar et al 2014).

Obstetric Haemorrhage – Midwifery telephone triage and antepartum haemorrhage (APH)

Another emerging theme identified within personal insights is that of selected childbearing women experiencing antepartum haemorrhage (APH), namely placental abruption, which went unrecognised during telephone triage with midwifery staff. This was often associated with a poor outcome for the fetus. The actual context for this theme involved childbearing women being advised to remain at home following reporting abdominal discomfort/pain perceived to be from contractions as opposed to being advised to attend the consultant led maternity unit when reporting constant abdominal pain and/or associated vaginal loss. Witness statements acknowledge experiences of abdominal pain as ‘unbearable’ and of ‘pain that did not go’.

Antepartum haemorrhage is defined as bleeding from or in to the genital tract, occurring from 24 weeks of pregnancy and prior to the birth of the baby. APH complicates 3-5% of pregnant women and is a leading cause of perinatal and maternal mortality worldwide (RCOG 2011). In addition, placental abruption has been described as a serious condition when there is premature separation of a normally situated placenta occurring after the 24th week of pregnancy. The aetiology of this type pf haemorrhage is not always clear though it may be associated with hypertension, a sudden reduction in uterine size (following ruptured membranes or following the birth of the first twin), abdominal trauma (including domestic violence) or cigarette smoking. Bleeding may be concealed or revealed or, in many situations, mixed haemorrhage. The condition of the woman will be dependent upon the degree of placental separation. Hence, mild separation will often involve slight vaginal bleeding and no abdominal tenderness. However, when moderate or severe separation of the placenta occurs, women will experience considerable blood loss (although may be concealed), shock and abdominal pain. The fetus may or may not be alive depending upon the degree of placental abruption (Marshall and Raynor Eds 2014).

Ultimately, although women with uncomplicated pregnancies are encouraged to remain at home in the latent stage of labour (NICE 2014), the need to be able to recognise deviations from norm, such as contractions, via telephone triage as opposed to the signs of placental abruption are of paramount importance. Although there is a clear lack of evidence reviewing telephone triage within midwifery practice, evidence that aims to analyse the context of such decision making has been produced by Cheyne et al (2006). This qualitative study explored midwives’ perceptions of the way in which they diagnose labour. Findings highlighted that midwives’ decision making was based upon the use of information cues which could be separated into 2 categories; those arising from the woman (physical signs such as distress or coping) and those from the institution (organisational factors and justifying actions). Therefore their diagnostic judgement was based upon the perceived physical signs of labour as opposed to the fact that there were signs of placental abruption. Hence this judgement resulted in delayed admission to the consultant led maternity unit and delayed recognition and escalation to senior obstetric staff.

In conclusion, there is an urgent need to raise awareness amongst midwives in relation to this, and other emerging themes within obstetric litigation, with the aim of minimising re-occurrence and of reducing the rising costs aligned to clinical negligence.

Angela Cook

This email address is being protected from spambots. You need JavaScript enabled to view it. Midwifery Expert Witness – UK & Northern Ireland Midwife – County Durham and Darlington NHS Foundation Trust (CDDFT) Midwife Teacher – Teesside University, Middlesbrough.


Alfirevic, Z., Devane, D. and Gyte, G, M. (2013) Continuous CTG as a form of electronic fetal monitoring for fetal assessment during labour. Cochrane Database Systematic review. https://www.ncbi.nlm.nih.gov/pubmed/23728657

Cheyne, H., Dowding, D. and Hundley, V. (2006) Making the diagnosis of labour; Midwives’ diagnostic judgement and management decisions. Journal of Advanced Nursing, 53.

Marshall, J. and Raynor, M. (2014) Myles textbook for midwives. Sixteenth edition. Churchill Livingstone. Elsevier: Edinburgh.

MBRRACE (2016) (Mothers and babies: Reducing risk through audits and confidential enquiries across the UK) Saving lives, Improving mothers care. Surveillance of maternal deaths in the UK 2012-14 and lessons learned to inform maternity care from the UK and Ireland confidential enquiries into maternal deaths and morbidity 2009-14.

NHS England (2016) National Maternity Review. Better births. Improving outcomes of maternity services in England. A five year forward view for maternity care.

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National Institute for Health and Care Excellence (2017) Fetal monitoring during labour.

Nursing and Midwifery Council (2015) The Code. Professional standards of practice and behaviour for nurses and midwives.

Royal College of Midwives (2017) The gathering storm: England’s midwifery workforce challenges.

Royal College of Obstetricians and Gynaecologists (2011) Antepartum haemorrhage. Green Top Guideline No.63.

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Sholapurkar, S, L. (2017) Trace display Doppler monitors. British Journal of Midwifery, 25 (5), p282-283.

Talaulikar, V, S., Arulkumaran, S. and Virginia, L. (2014) Intrapartum fetal surveillance – Case based learning. Obstetrics, Gynaecology & Reproductive Medicine, 24 (2).