Medicine and the Law - Birth Trauma Litigation — A Practitioner’s Perspective

The birth of a child is not only an occasion for celebration, it is also a moment fraught with anxiety over the well-being of both mother and child. In some unfortunate cases, the birth process may not be smooth and uneventful, and the infant may sustain injury or even death. In this article, Mr Palakrishnan shares with us his views on what happens when lawyers become involved in such cases of birth trauma.

The legal system is our society’s way of providing the means with which to compensate individuals who have been injured as a result of medical malpractice.

All medical procedures, even those in connection with childbirth, have inherent risks, some of which are unavoidable. However, as medicine is not an exact science, a poor outcome does not automatically mean there was medical malpractice.

Doctors, hospitals and medical professionals are nevertheless responsible for their actions, like every other member of society.

Medical negligence is a negligent act or omission by a doctor, hospital, nurse or other health care provider. In order to make a claim for medical malpractice, there must have been a departure from an accepted custom or practice which caused injury or damage.

Thus, there are three important elements that must exist before an injured person can file a lawsuit al leging medical negligence:

Traumatic injury to a newborn occurring during the birthing process is a tragic but not too common an occurrence in Singapore. Medical negligence is one of the causes of this type of injury.

Whilst traumatic birth injuries can occur to any part of an infant’s body, the most serious and those with the most far-reaching consequences are injuries to the brain and neurologic system. These injuries can occur either through direct trauma to the skull of the foetus or through a biological process which results in foetal distress — a lack of adequate oxygen to the foetus’ (baby’s) brain, which can cause cerebral palsy.

Whilst these injuries may occur even if an obstetrician skillfully improve and properly handles the pre-natal and birthing process, they often result from inappropriate or deficient medical treatment. This inappropriate or deficient treatment is often referred to as medical negligence or medical malpractice.

If a child is injured at birth through medical negligence, the parents may be entitled to compensation for the injuries and damages they have suffered. If you suspect that an infant has suffered birth trauma (cerebral palsy, shoulder dystocia, etc) caused by medical negligence or medical malpractice, it is important to immediately investigate the matter to determine the cause of the injury.

A medical expert should review the birth records and all of the facts surrounding the birth injury to determine if the medical care fell below the acceptable standard of care in the community. If an expert concludes within a reasonable degree of medical certainty that the birth injury was caused by medical negligence, then it may be appropriate for the child’s parents to pursue an action in court.

During pregnancy, the foetal brain needs adequate supplies of oxygen and glucose, among other things, to develop normally. Oxygen and glucose originate in the maternal blood, where they are transported to the placenta, through the umbilical cord, to the foetal circulatory system, and, finally, to the foetal brain. After delivery, the newborn lung replaces the placenta as the primary organ responsible for oxygenating the blood circulating within the newborn infant.

Certain maternal, foetal, or neonatal conditions can interfere with normal blood flow to the foetal or newborn brain (‘ischemia’), or reduce the oxygen content of the blood perfusing the brain tissue (‘hypoxemia’). This can happen before the onset of labour (the antepartum period), during labour and delivery (the intrapartum period), or after birth (the immediate neonatal period).

Sometimes, the clinical condition of the newborn immediately after birth will alert the physicians and parents to the fact that the baby suffered a brain injury. In many of those cases, the primary diagnosis is ‘perinatal asphyxia’, or ‘birth asphyxia’, or ‘hypoxic ischemic encephalopathy’ (referred to by many physicians as HIE). In other cases, the parents may not realise that their child suffered a brain injury until the child fails to achieve developmental milestones during the first year of life.

Regardless of when the parents find out about their child’s condition, when they ask physicians for an explanation as to why their child suffered an irreversible brain injury, they are routinely told by their physicians that the outcome was unavoidable.

Yet, a review of the clinical records may disclose a history of one or more maternal, foetal, or newborn complications that would have been capable of initiating a sequence of events leading to the brain damage. Some of these complications or risk factors are pre-term labour, premature rupture of the membranes, hypertension, diabetes, oligohydramnios, trauma, maternal infection, neonatal sepsis, abnormal blood gas studies, non-reassuring foetal heart rate patterns, breech presentation, intra-uterine growth retardation, or placental insufficiency due to post-dated pregnancy.

Pregnancy outcome may often depend on the timely diagnosis and management of maternal and foetal complications that may place the foetus at risk for neurological injury or death. Some high risk pregnancies can be identified based upon the patient’s history, while other complications can be discovered through laboratory testing, physical examinations, antepartum tests of foetal well-being, and foetal monitoring during labour.

When blood flow to the brain is disrupted or the oxygen content of the blood is reduced, the foetus is at risk of sustaining permanent brain damage.

When the parents of a child are informed that their son or daughter has a permanent neurologic or intellectual disability, it is reasonable for the parents to ask about the cause of the disability and to search for explanations as to why their child was injured.

Lawyers perform a vital service when, with the help of qualified experts, they evaluate the quality of the medical care rendered by the physicians and nurses during the pregnancy, during labour and delivery, and during the immediate newborn period.

Sometimes, the evaluation will reveal that the outcome could not have been prevented. Unfortunately, there are circumstances where the evaluation reveals that the failure to diagnose or to properly manage pregnancy complications, or to respond to foetal distress, or to expedite the delivery of the foetus resulted in irreversible brain damage.

When approached (as a lawyer) to determine if medical negligence occurred during the pregnancy, during labour and delivery, or during the immediate newborn period, one must determine whether the client can prove that:

In other words, the question is whether the infant’s injury could have been prevented if the physicians or nurses had complied with the standard of care.

In each case, medical experts may have to be called to evaluate the claim of medical negligence, and they will be able to determine whether the responsible physician or hospital:

It used to be that doctors defending negligence actions had been able to rely on evidence of opinion from colleagues to justify their actions. In Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, a psychiatrist and an anaesthetist were sued for negligence because they failed to use muscle relaxants when giving electroconvulsive therapy to a patient suffering from depressive illness. Expert evidence was adduced that this method amounted to an accepted practice by some of their colleagues. In other words, some doctors felt that muscle relaxants should be used and others thought them unnecessary. This proved to be a successful defence as Bolam held that:

Soon, more medical negligence cases reached trial which showed that the views of even a small minority would qualify and that the defendants did not have to worry about ‘counting heads’.

Despite the Bolam proposition, many have questioned the logic in doctors being allowed to justify their actions merely by showing that a few of their colleagues would have done the same in the circumstances.

The plaintiff (in Bolitho v City and Hackney Health Authority [1998] AC 232) was admitted to hospital with croup at the age of two. His respiratory efforts soon deteriorated further, and the nursing sister called the resident doctors twice but there was a breakdown in communications, and they failed to attend. Soon after the second call, the plaintiff collapsed and suffered very severe brain damage. Negligence was conceded by the defendants with regard to the failure to attend.

The plaintiff’s case was that if the plaintiff had been attended to, a tube would have been passed into his throat to avert respiratory obstruction and that the brain damage would therefore not have occurred. Conversely, the defendants argued that even if the doctors had responded in good time they would have refrained from the procedure because it was too risky.

The trial judge, faced with two conflicting bodies of medical opinion, followed Bolam, and accepted both opinions, and the plaintiff lost.

In the Court of Appeal, the lower court’s findings were upheld. A further appeal then ensued to the House of Lords.

In the House of Lords, the plaintiff’s lawyers argued that the views of the defendants’ experts should not be accepted because they were founded on an over-estimate of the risks involved in intubation of such a young child. Lord Browne-Wilkinson said that, as a layman, he was impressed with this argument but he refused to accept it because, in effect, ‘it invited me to substitute my own views for those of the medical experts’. For the third and last time, the plaintiff lost his case.

However, a very important point has emerged from the House of Lords decision with regard to the position of defending doctors. The words used in earlier medical negligence judgments were examined and the oft-used adjectives ‘responsible’, ‘reasonable’ and ‘respectable’ were seen to describe a body of opinion which would qualify as a successful defence. Their Lordships held that this

What would be required to escape liability will be a convincing and logical argument to a judge who has little or no medical knowledge.

The local courts had the opportunity of considering both cases in the recent case of Jason Carlos Francisco v Dr LM Thng & SGH (unreported). Justice Judith Prakash accepted the Bolam test as stating that:

Her Honour further approved the test for the standard of care as stated in Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] 1 All ER 643:

However, Her Honour went on to say that whilst the court shall have regard to medical opinion:

Another possible head of claim is that for nervous shock, as seen in the local case of Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317, where Amarjeet JC allowed the claim of a plaintiff-mother who suffered psychiatric illness resulting from her daughter’s death caused by the defendant-doctor, who had negligently removed healthy brain tissue from the daughter’s brain.

A physician is required to conduct a proper examination and to exercise reasonable care and skill in diagnosing any maternal or foetal complications that develop during the pregnancy. The physician must evaluate all clinical data and perform a differential diagnosis, based on all of the facts known to the physician.

However, the failure to diagnose also must be the proximate cause of the injury. Thus, if timely diagnosis would have made no difference in the outcome, the failure to diagnose foetal distress and to expedite delivery may not be actionable, even though the delay resulted from the failure to comply with the standard of care.

A physician may be liable for injuries caused by the failure to order appropriate antepartum or intrapartum tests, or by his failure to properly interpret the results of the test.

An obstetrician must examine the patient at appropriate intervals, identify high risk conditions, confirm the presentation and the stage of labour, and evaluate all clinical and laboratory findings in making a diagnosis and recommending treatment.

A frequent issue is whether the nurses and/or physicians properly interpreted the electronic foetal heart rate strips during labour and delivery. Similarly, a critical question is whether the obstetrician failed to recognise the signs of foetal distress and to expedite delivery.

A physician cannot undertake the treatment of conditions that are beyond his/her training and skill. It is axiomatic that a physician has a duty to refer the patient to a specialist, particularly when the patient is in need of treatment beyond that which the physician can offer.

Physicians must disclose all material information concerning a patient’s condition or treatment to the patient. Much litigation has evolved as a result of claims by patients that they relied on incorrect or inadequate information in consenting to or declining a particular treatment or course of action. Obstetricians frequently argue that performing a Caesarean section carries a greater risk to the mother and increases the cost of medical care.

An interesting question may be whether the pregnant mother was given the choice of selecting a Caesarean section, when the physician was unable to confirm foetal well-being and there was a risk of injury to the foetus, if the pregnancy was prolonged. Another potential claim arises when a physician fails to inform the patient about the risks and complications of a vaginal delivery after a prior Caesarean section.

In this respect, the Bolam principle has somewhat been varied in the Australian case of Christopher Rogers v Maree Lynette Whitaker [1993] 1 CLJ 449, when it said:

This pronouncement was accepted in the Malaysian case of Foo Fio Na v Hospital Assunta & Anor [1999] 6 MLJ 738.

The most frequent defence raised by the physician is that he/she made an honest mistake in judgment. This defence is predicated on the assumption that the physician had a choice between two or more recognised and approved methods of treatment, or that the injury was unforeseeable, and not a result of the physician’s lack of knowledge or the failure to exercise reasonable skill and care.

Of course, the obstetrician cannot avoid liability in such a situation, unless it is established that a proper medical history was taken, proper examinations were performed, appropriate tests were ordered and interpreted, and all clinical and laboratory data was considered.

An obstetrician can try to justify his or her actions by proving that he or she followed the standard of care required of obstetricians acting under the same or similar circumstances. For example, a physician who allows a woman to proceed with labour even though the foetal monitor strips have abnormal patterns and suggest signs of hypoxia may claim that the foetal heart rate patterns are open to interpretation. The defence will be that the physician had two reasonable choices:

Once it is shown that the physician did not follow the standard of care, the focus of the litigation will shift to whether the obstetrician’s act or omission caused injury to the mother and/or the child.

For example, a physician’s alleged negligence in failing to perform a timely Caesarean section due to foetal distress may not be the cause of the child’s brain damage. The physician may claim that there is evidence that the brain damage was caused by infection, by a congenital or genetic condition, or by some other complication over which he/she had no control.

In many cases, the patient must prove that the damage or injury suffered by the child was proximately caused by the physician’s negligence. In other words, the evidence must show that it is more probable than not that the physician’s action or omission caused the brain injury suffered by the child or caused the death of the child.

Proving proximate cause depends on the patient’s ability to introduce evidence that there was a better than 50% chance that the baby would have been born normal or would have survived if the physician had complied with prevailing standards of care; anything less than proving a better than 50% chance results in a decision for the physician.

A physician may escape liability if there is evidence that the patient’s failure to exercise ordinary care for her own protection contributed to her injury.

In obstetrical cases involving a stillborn, it is usually necessary to prove that the foetus was viable at the time of death.

Clinical negligence litigation is costly, complex, emotionally charged, politicised, polarised, publicised; it is lengthy, distressing, and cripplingly so. Often, even when the doctor wins, he has already lost in other ways.

An unprecedented rise in negligence cases means massive increase in premiums to protect against possible litigation. Just consider, in England, in 1962, fees (insurance premiums) were just £2 a year, and suing a doctor was almost unknown; now it is nearly £2,000 for GP principals.

Birth-related neurological injuries impose high costs on injured infants and families, obstetric care-providers, and the liability of the insurance system. As a result, some states in the USA have initiated reform — efforts to decrease the severity and frequency of obstetric malpractice claims, perhaps doing so at the cost of the rights of injured infants and families by the abrogation of the common law cause of action.

In the case of evidence, a lesson can be learnt, at least from one doctor in Texas, when sued by a patient, claiming that he had caused brain damage and paralysis by failing to perform a prompt Caesarean section operation, despite ominous foetal heart tracings. The doctor won the case because he had saved a valuable piece of exonerating evidence that most others routinely toss out — the baby’s placenta, which confirmed some type of infection had been present which caused the cerebral palsy, 2–3 days before the baby was born, making the timing of the Caesarean section irrelevant. The doctor’s lawyer quipped:

With studies showing birthing trauma linked to diminished IQ (an Ohio study in 1991) and even violent suicides (a Swedish study in 1998), the tragedy of birthing trauma extracts no small price, not just for the infant and his family, but society as a whole.

In conclusion, may I end with a positive note, wishing that when you return to your practice, and go about your daily tasks, pay heed to your patients’ well-being and exercise the level of care that you would expect to be rendered to your loved ones, and your unborn child or grandchild.

And may that child on birth be able, upon arrival, to blissfully rejoice in ‘A Child’s Hymn of Praise’:

I thank the goodness and the grace
Which on my birth have smiled
And made me, in these trying days
A happy healthy child.