The cost of maternity claims has risen dramatically over the last 10 years. As part of Kennedys’ annual healthcare seminar programme, Mr Derek Tuffnell, Consultant Obstetrician and Gynaecologist, considered common issues arising in claims.

The NHS Litigation Authority (NHS LA) has reported that in 2014/15, 10% of all new claims were obstetric and they made up 41% of the value of new claims. The figures published by the NHS LA suggest the number of maternity claims being brought is falling, which might indicate maternity care is improving. However, it should also be borne in mind that it can be a number of years before these claims are brought to the NHS LA’s attention.

The management of labour is the top category for maternity claims and cerebral palsy claims represent the highest value.

Mr Tuffnell considers that key common issues include the following:

  • CTG interpretation: in the 10 years covered by the NHS LA’s study of maternity claims, 300 claims involved alleged cartiotocography (CTG) misinterpretation. The total value of these claims is estimated to be in the region of £466 million. Failure to recognise an abnormal CTG and failure to act are the most common themes of claims. Mr Tuffnell considers CTG has significant limitations. The legal view tends to be that if CTG fails it must be because someone has not used it properly. However, that is not always the case. Trials have shown that in low-risk pregnancies there is no significant improvement in the outcome for a baby in using CTG as opposed to intermittent auscultation. CTG has been shown to increase intervention with no evidence of benefit. It is an imperfect technique upon which major clinical judgements are made.
  • Delay in delivery: in the NHS LA’s study the highest number of claims involved a delay in delivery of less than one hour. Acute brain injury is very rare in practice and occurs maybe once in a clinician’s lifetime. In the vast majority of cases in which Mr Tuffnell has reported, the babies have been damaged within a period of 10 minutes, which is not very long to act. In practice clinicians have to identify which babies need to be delivered first. However, often the vast majority of problems occur with low-risk pregnancies, which makes it very difficult for clinicians.
  • Caesarean section: a caesarean section, like any operation, has risks. There are national guidelines as to when they should be performed. In the wake of Montgomery v Lanarkshire Health Board [2015] it is worth noting that caesarean sections do not prevent babies from being born with trauma. There is no method of delivering a baby which is risk free. From a new study of women who gave birth to twins it has been shown that caesarean section has no benefit. Labour is a natural process and we should not be medicalising it where there are no indications to do so.
  • Patterns of injury: the patterns of injury are trauma (such as brain haemorrhage, blood loss or fracture) and hypoxia. Hypoxia is divided into acute (such as maternal collapse, uterine rupture or shoulder dystocia) and chronic (such as a placenta problem, cord compression or syntocinon). Chronic partial hypoxia is caused when uteroplacental blood flow falls by 50%, causing foetal oxygen consumption to reduce.

Claims

Mr Tuffnell has reported on over 200 cerebral palsy claims since 2012. He points out that in litigation you see the rare and unusual cases in terms of both error and pathology.

Common features in the claims on which Mr Tuffnell has reported include:

  • Acute events, such as uterine rupture, shoulder dystocia and twin events.
  • Intermittent auscultation was normal but babies were then born in poor condition, usually because something has happened in the last 10 minutes before birth.
  • Maternal heart rate has been monitored as opposed to foetal heart rate and the baby was born in a poor condition.
  • Failure to respond to an abnormal CTG.
  • Bradycardia, although in Mr Tufnell’s opinion most are unpredictable and unpreventable.
  • Abnormal CTG on admission and clinicians wait to see if the heart rate will improve.

What can we learn?

Mr Tuffnell considers the following lessons can be learnt from obstetric claims:

  • Being a low-risk pregnancy does not guarantee a good outcome.
  • Intermittent auscultation misses things and we need to consider new ways of improving the technique.
  • An abnormal or concerning CTG on admission is high-risk for a poor outcome: clinicians should not delay in making a decision to deliver.
  • CTG has significant limitations and is in need of refinement.

There is no doubt that obstetricians face a massive challenge. It is hoped that lessons can continue to be learnt in order to improve safety and reduce the number of obstetric claims.