A Plaintiff Lawyer’s Perspective on Obstetrics Claims

Dimitra Dubrow, Principal, from Maurice Blackburn Lawyers has presented at the Obstetric Malpractice Conference. If you would like more information about the conference, please visit the website: http://bit.ly/10xh1iO

Published in: Health & Medicine

A Plaintiff Lawyer’s Perspective on Obstetrics Claims from Informa Australia

Transcript

• 1. Obstetric MalpracticeConference 2012A plaintiff lawyer‟s perspective onobstetric claimsDimitra Dubrowtwitter.com/WeFightForFairfacebook.com/MauriceBlackburnLawyers
• 2. Obstetric Malpractice Conference 2012Page 2Case selection• Obstetric claims - part of extensive array of medical negligenceclaims.• Many enquiries received daily about medical treatment concerns.• Enquiries screened and most not pursued.• Must apply case selection criteria.• Judgement calls being made from the outset.• Decision whether to pursue or investigate critical.• Claims time and resource intensive.
• 3. Obstetric Malpractice Conference 2012Page 3• Must establish:• Care below reasonable standard / negligent;• Negligent care, on the balance of probabilities, caused injury;• Injury meets any statutory threshold or is serious enough towarrant bringing a claim• Causation - area of great contention.• Every element of claim to be supported by independent expertevidence.• Refer people we cannot assist to appropriate body, eg HSC.
• 4. Obstetric Malpractice Conference 2012Page 4• First class health system in AustraliaBUT Hospital system under strain Population growth and demographic changes Significant improvements in area of communicationBUT still see:• Poor communication with patients• Poor communication between medical, nursing and other healthprofessionals Medical outcomes affected by poor/ no communication, hand overor documentation
• 5. Obstetric Malpractice Conference 2012Page 5 Good communication minimises misunderstandings and ill will ifthings go wrong Open disclosure – transparency and accountability Victorian Charter of Human Rights and Responsibilities 2006 (Vic)– obliges public hospitals to discuss adverse events with patients
• 6. Obstetric Malpractice Conference 2012Page 6• National standards for open disclosure developed by the AustralianCouncil for Safety and Quality in Health Care in 2002.• Not practiced consistently/ad hoc• Poor communication and lack of understanding is big driver for peoplecontacting lawyers• Open communication brings tangible benefits• Apology not admission of liability – s 14J Wrongs Act 1958
• 7. Obstetric Malpractice Conference 2012Page 7Where cases arising• In birth trauma enquiry look for: signs of foetal hypoxia or lack of progress not acted upon Condition of baby at birth Neonatal course Findings of investigations Diagnosis – type of cerebral palsy
• 8. Obstetric Malpractice Conference 2012Page 8Obstetric failures dealt with: Inadequate monitoring during labour• No continuous CTG monitoring following syntocinon administration• Failure to undertake intermittent auscultation following prostinadministration.• Failure to record maternal heart rate and contractions on CTG trace.

• 10. Obstetric Malpractice Conference 2012Page 10Prostin – case study• Labour induced at 40 weeks and 5 days• CTG applied - baseline 165 to 170 bpm• Prostin withheld until mild baseline tachycardia resolved• Prostin 1mg inserted• Contraction frequency 6 in 10 minutes
• 11. Obstetric Malpractice Conference 2012Page 11• Queried hyperstimulation• Mother remained in ante natal ward• No steps taken to assess foetal wellbeing• Intermittent auscultation but foetal heart rate not checked between3.30 and 4.45 p.m.• 4.45 p.m deceleration heard on intermittent auscultation.• CTG trace applied - showed deep prolonged deceleration and lack ofvariability.
• 12. Obstetric Malpractice Conference 2012Page 12• Baby delivered - thick meconium and Apgar scores of 1 @ 1 min. and3 @ 5 mins.• Case put on basis that:• CTG showed evidence of uterine tachysystole contraction frequencyof six in ten minutes which should have been acted on.• Mother should have been transferred to labour ward after Prostinadministration.• Failure to appropriately monitor foetal well being and no assessmentof foetal heart rate for more than one hour.• Decelerations down to 70 beats per minute at 4.45 p.m. demandedemergency review, caesarean section and administration ofTerbutaline
• 13. Obstetric Malpractice Conference 2012Page 13Oxytocin – case study• Patient responses vary, hence need for close monitoring andcontinuous CTG tracing.• Mother admitted in 2002 for induction of labour.• 9:40 hours Syntocinon infusion and CTG monitoring.• 12:04 hours CTG ceased.• Contractions 5 in 10 mins.• 18:50 hours vaginal examination - evidence of obstructed labour.
• 14. Obstetric Malpractice Conference 2012Page 14• 20:08 vaginal examination - labour clearly obstructed.• Decision to deliver by caesarean section.• Syntocinon continued to run and baby born by caesarean section at21:10 hours.• Initial Apgars scores good but then developed seizures• MRI scan showed brain damage
• 15. Obstetric Malpractice Conference 2012Page 15Claim put on basis:• Should have been continuous CTG monitoring whilst Syntocinon inplace.• Evidence of stress would have been apparent earlier if CTGmonitoring taken place.• Strong contractions of at least 5 in 10 mins should have led toreduction of rate of Syntocinon.• Contraction rate contributed to adverse outcome.
• 16. Obstetric Malpractice Conference 2012Page 16Shoulder Dystocia• Difficult to predict• Risk factors:• Gestational diabetes with macrosomia.• Foetal weight estimated to be greater than 5kg.• Previous shoulder dystocia important risk factor.
• 17. Obstetric Malpractice Conference 2012Page 17Shoulder Dystocia – case study• First pregnancy:• gestational diabetes• Delivery at 39 weeks - boy - 3.76kg• Second pregnancy:• Delivery at 37.5 weeks – boy - weighing 4.1kg• Mild shoulder dystocia• Not diagnosed with gestational diabetes but test resultsindicative of gestational diabetes
• 18. Obstetric Malpractice Conference 2012Page 18• Third pregnancy:• Two normal glucose tolerance tests• Fresh meconium found in the spontaneously ruptured membranes• Labour became obstructed• Downward traction applied• Head delivered then episiotomy performed• Suprapubic pressure• baby boy delivered weighing 6.1kg• Brachial plexus syndrome and Horners syndrome
• 19. Obstetric Malpractice Conference 2012Page 19Claim put on basis:• Given obstetric history, attempts should have been made to assessfoetal size• Episiotomy should have been performed once labour obstructed• Downward traction inappropriate and excessive force caused brachialplexus injury
• 20. Obstetric Malpractice Conference 2012Page 20Foetal death in utero• Hypertension• Pre-eclampsia• Appendicitis
• 21. Obstetric Malpractice Conference 2012Page 21Appendicitis – case study• Mother developed nausea, diarrhoea and vomiting around 23 weeks.• Attended emergency department on three occasions.First presentation:• Diagnosis of infectious gastroenteritis• Vomiting and diarrhoea had resolved• Abdominal pain• Next day phone contact because of increased pain
• 22. Obstetric Malpractice Conference 2012Page 22Second Presentation:• Following day, attended emergency department with worsening painand increased white cell count• Appendicitis queried and possible urinary tract infection• Discharged

• 23. Obstetric Malpractice Conference 2012Page 23Third presentation:• Next day, phone contact re vomiting brown liquid• That evening presented again• Pain level 10 out of 10• White cell count dropped• Perforated appendix considered• Antibiotics commenced• Developed peritonitis and appendectomy• Delivery of stillborn baby
• 24. Obstetric Malpractice Conference 2012Page 24• Reports of committees and bodies eg. Victorian Maternity Safety andQuality Committee and Consultative Council on Obstetric andPaediatric Mortality and Morbidity play important role• Fall short of providing individual accountability• Support of Coroner‟s jurisdiction being broadened to allow forinvestigation of stillbirths.
• 25. Obstetric Malpractice Conference 2012Page 25Gynaecological Injuries• Repair of perineal tears• Breakdown of repairs and development of recto-vaginal fistulas• Filshie clip / sterilisation procedures• Death of a 29 year old mother of four following laparoscopicsterilization surgery• Application of Filshie clips failed and diathermy of the tube was used• Bleeding then severe haemorrhage
• 26. Obstetric Malpractice Conference 2012Page 26• Infuse blood and maintain pressure on abdomen• Internal iliac artery ligated• Hypovolaemic shock• Difficulties obtaining fresh frozen plasma• Ambulance arrived - blood oozing from the site - further laparotomy• Active bleeding in the lower right pelvis• Bleeding could not be controlled
• 27. Obstetric Malpractice Conference 2012Page 27• Flown to tertiary hospital where emergency midline laparotomyrevealed:• two large holes in the right iliac vein,• hole in the right iliac artery,• macerated uterus with moderate fibroid,• hole in the sigmoid colon and• clots around the liver and the spleen.
• 28. Obstetric Malpractice Conference 2012Page 28Causation• Hotly contested area in cerebral palsy claims• “A Template for Defining a Causal Relationship between AcuteIntrapartum Events and Cerebral Palsy: International ConsensusStatement” BMJ -1999 - Dr. Alastair MacLennan• Criteria said to be essential for establishing intrapartum event:• Evidence of metabolic acidosis• Early onset of neonatal encephalopathy• Cerebral palsy of the spastic quadriplegic or dyskinetic type
• 29. Obstetric Malpractice Conference 2012Page 29• Further criteria that together suggested an intra partum timing:• A sentinel hypoxic event immediately before or during labour;• A sudden, rapid and sustained deterioration of the foetal heart ratepattern usually after the hypoxic sentinel event where the pattern waspreviously normal;• Apgar scores of 0 – 6 for longer than five minutes;• Early evidence of multi system involvement;• Early imaging evidence of acute cerebral abnormality;
• 30. Obstetric Malpractice Conference 2012Page 30• Cognisant of the criteria• Do not regard each and every criteria in the consensus statement asmandatory to the success of a case.• Subjective component to APGAR scores• Independent review of MRI scans
• 31. Obstetric Malpractice Conference 2012Page 31Causation• Need to establish causal nexus between negligent obstetricmanagement and the damage.• Insult occurred at or around the time of delivery• Delivery at an earlier time, as required by reasonable obstetricpractice, would, on balance of probabilities have avoided hypoxicevent.

• 32. Obstetric Malpractice Conference 2012Page 32• Tabet v Gett (2010) 240 CLR 537• Not sufficient for a plaintiff to establish that the negligentmedical management resulted in the loss of a chance of abetter outcome• Must establish with expert evidence what injury theplaintiff would, more likely than not, have avoided withappropriate care
• 33. Obstetric Malpractice Conference 2012Page 33• Hirst v Sydney South West Area Health Service [2011]• Argument around loss of a chance• Plaintiff born with gross hydrocephalus - severely disabled withcerebral palsy.• Unstable lie at around 37 weeks• Ultrasound not arranged after diagnosis made
• 34. Obstetric Malpractice Conference 2012Page 34• Ultrasound would have revealed hydrocephalus and led toinduction/delivery• Earlier operation to relieve pressure in plaintiff‟s brain - less severedisabilities• Tabet v Gett distinguished – here causation experts unanimouslyagreed that damage had been caused by the defendant‟s negligence
• 35. Obstetric Malpractice Conference 2012Page 35• Finding that plaintiff would have been 20% better off if there had beenno breach• “This is not a chance of a better outcome but an assessment of howmuch better the outcome would have been.”• Plaintiff to recover $100,000 for non-economic loss• Past and future care costs claimed not recoverable given the injuriesand disabilities the plaintiff would have suffered even with earlierdelivery
• 36. Obstetric Malpractice Conference 2012Page 36Life Expectancy• Impacts on quantum• Directly relevant to the claim for future care, support and equipment• Epidemiological data• Life Expectancy Project – San Fransisco – Professor Strauss and DrShavelle• Professor Hutton and Professor Pharoah – Mersey region UK• Application of epidemiological studies verses individual clinical factors
• 37. Obstetric Malpractice Conference 2012Page 37Strauss and Schavelle• Negative impact on mortality - severity of disability, immobility andinability to feed or be fed• Improvement in the life expectancy of those requiring peg feedingHutton and Pharoah• Severe ambulatory disability and manual dexterity affects mortality.• Severe visual disability additional risk factor• Severest form of CP face the worst prognosis
• 38. Obstetric Malpractice Conference 2012Page 38• West Australian study „Life Expectancy among People with CerebralPalsy in Western Australia‟ – Blair et al (2001) Strongest predictor for mortality was intellectual disability and severemotor impairment also increased the risk of early mortality• Swedish study 2011, „Survival at 19 years of age in a total populationof children and young people with cerebral palsy‟ – Westbom et al 90% of the total study population of children with CP aged 2 to 19 yearssurvived Survival to 20 years of age was 60% in children with most severe grossmotor function impairment – GMFCS level V. Children with gastrostomy had ninefold increased risk of death
• 39. Obstetric Malpractice Conference 2012Page 39• Studies cannot reliably predict the likely survival years of any oneindividual person.• Retrospective studies cannot reflect enhanced life expectancy medicaladvances continue to deliver• Must bring focus back to the individual child• Gain comprehensive understanding of the child‟s abilities in all theareas identified as predictive of life expectancy in the literature• Courts in Australia have tended towards treating the epidemiologicalstudies as useful starting point but that individual factors should beclinically evaluated.