Litigation Risk in Labour and Delivery – An Overview

Setting the Scene – The National Picture for Obstetric Claims

According to the Office for National Statistics, 657,076 live births were recorded in England and Wales in 2018 (the figures for 2019 not having been released as of March 2020)[1]. It is therefore unsurprising that claims relating to obstetric care continue to represent a high number of the total clinical negligence claims made in England and Wales.[2]

Such claims also have a tendency to hit headlines due to maternity claims continuing to represent the highest value claims received – for example, in 2018/19, whilst obstetrics claims represented 10% of the total number of claims received by NHS Resolution[3], they accounted for 50% of the total value of claims received.[4]

With this known potential for high value claims in this area, TMLEP consider that it is important for healthcare providers to be aware of the litigation risk associated with obstetric care and, in particular, labour and delivery. Labour and delivery is a dynamic process and each patient’s experience can vary widely dependent upon the management of their labour and the mode of delivery undertaken.

In this article, TMLEP seek to highlight the litigation risks associated with management of labour and different types of delivery to serve as an overview for healthcare providers of this complex area.

Key Litigation Risks of Labour and Delivery

1. Management of Labour

a. Case Study

Patient was admitted in labour with the plan being for a vaginal delivery.

During the second stage of labour the CTG trace (electronic monitoring which monitors both the mother and baby’s heart rates was persistently abnormal in that the baby had an abnormally low heart rate. This was not recognised for some hours.

Patient was eventually taken to theatre for a Category 1 caesarean section to expedite delivery due to the abnormal CTG trace, however, the baby sadly died shortly after delivery.

b. Analysis

This case study highlights the serious consequences which can result from a failure to recognise abnormalities during delivery and expedite the process; expedition can either be through administration of medication to augment contractions, instrumental delivery or caesarean section.

TMLEP regularly see claims relating to the management of labour which have resulted in either stillbirth or in brain injury to the baby. The litigation risk is particularly high in such cases as ones involving serious brain injury to the child tend to attract high values of damages given the requirement for lifelong care for the child.

2. Vaginal Deliveries

a. Case Study

Patient was delivered a baby vaginally following a normal labour.

Perineal, rectal and vaginal examination was performed following delivery and a second-degree perineal tear (a tear not involving the anal sphincter) was identified and repaired.

Following discharge, Patient suffered symptoms of urinary and faecal incontinence. Patient was subsequently diagnosed with a third-degree tear (one which involves the anal sphincter) and had to undergo further surgery to repair this.

b. Analysis

This case study highlights a type of claim which is regularly seen by TMLEP in respect of vaginal delivery – perineal tear and injury to the perineum and anal sphincter.

Whilst damage to the perineum and anal sphincter is a recognised complication of any vaginal delivery (with or without instrumental assistance) and not all instances of failure to recognise the extent of the injury will necessarily be negligent, the symptoms of incontinence which can be suffered by patients and have an ongoing impact of their work and everyday life mean that this is a key area of litigation risk for healthcare providers to bear in mind regarding vaginal deliveries.

3. Instrumental Deliveries

a. Case Study

Patient’s cervix fully dilated in labour but contractions were short lasting. An attempt was made to augment the contractions with medication, however, this was unsuccessful and the Patient was transferred to theatre for instrumental delivery.

Baby was successfully delivered by forceps but it was not identified baby was in the occipito-posterior position (back of baby’s head was against the Patient’s back). Subsequently, damage to the baby’s facial nerves was identified.

b. Analysis

Vaginal deliveries can be assisted when medically necessary through use of forceps, as described in the case study above, or a ventouse (vacuum extractor). In addition to the increased risk of tearing for the mother with assisted delivery which can be subject to litigation, there is also a risk of injury to the baby.

Whilst injuries to the baby are rare during instrumental delivery, TMLEP consider that this risk is important to be borne in mind by healthcare providers as facial, skull or nerve damage can have lasting consequences for the child, including brain injury, and can attract significant damages.

4. Elective Caesarean Sections

a. Case Study

Patient was advised during pregnancy to have an elective caesarean section due to a complicated previous medical history.

During delivery, the baby suffered a facial laceration. This risk of caesarean section was not discussed with the Patient during the consenting process or documented on the consent form.

b. Analysis

With the recent change regarding the law of consent in the Supreme Court’s ruling in Montgomery[5] and the emphasis squarely shifting to patient choice and the patient’s understanding of the material risks of the procedure, TMLEP consider that there is potential for claims to increase in respect of consenting for elective caesarean sections.

The complication which this case study highlights is of fetal laceration. Whilst this risk is not common (only occurring in around 1-2% of caesarean sections), the case of Thefaut [6] confirmed that a 1% risk of nerve damage was a ‘material’ risk which should have been discussed with the patient. Therefore, given the high threshold for patient consent which appears to be being applied by the Courts, thorough consenting processes are key.

5. Non-Elective/Emergency Caesarean Sections

a. Case Study

Patient was admitted for induction of labour at term. The induction failed and the Claimant had an emergency caesarean section to deliver the baby.

Patient had difficulties passing urine post-delivery and was subsequently diagnosed with an injury to the ureter which was not recognised at the time of the caesarean section.

b. Analysis

Caesarean sections attract surgical risks to both mother and baby – such as injury to surrounding structures such as the ureter, bladder or bowel which is highlighted in the above case study - which are not present in vaginal delivery and emergency caesarean can sometimes increase these intraoperative risks when compared to elective caesarean section. Whilst injuries to the ureter are uncommon during caesarean section, the impact if the diagnosis of such injury is delayed can be significant and lead to patients requiring further surgery or suffering longer term symptoms. TMLEP is therefore highlighting this as a key litigation risk given the potential for long-term impact on patients.

Conclusion

In writing this article, TMLEP look to give an overview of key litigation risks which have been identified in maternity claims being brought against Consultant Obstetricians and their employing healthcare providers with regards to different modes of delivery and the management of labour.

TMLEP would highlight the particular litigation risk associated with management of labour and attempted vaginal delivery where abnormalities on CTG trace are not picked up and delivery is not expedited.