Birth Trauma
and
Handicapped child;
Medicolegal Aspects
Dr.Nuri Danışman Dr.Cantekin İskender ve ark.
ZTB Teac.Research Hospital Perinatology
Clinic
‘‘If the doctor has treated a gentlemen with a lancet of bronze and has caused the
gentleman to die, or has opened an abscess of the eye for a gentleman with a bronze lancet, and has caused the loss of the gentleman’s eye, one shall cut off his hands ”
Powis Smith JM. Origin & History of Hebrew Law. Chicago, IL: University of Chicago Press;
1931
Did not get any better since then!
Definition
Malpractice
• Any adverse event that
occurs due to proffessional neglicience by ACT or
OMISSION
Complication (allowed risk)
• Any adverse event during
medical care
– All standards of medical care must be fulfilled
Eg: Penisillin at hospital
ANAPHYLAXIS
Complication
No preparation for anaphylaxis
Malpractice
Reasons Why People Sue Their Doctors
• Advised to sue by influential other 32
• Needed money 24
• Believed there was a cover-up 24
• Child would have no future 23
• Needed information 20
• Wanted revenge, license 19
Percent Expressing Concern
Source - Hickson, 1992
Hickson, 1992
Birth related litigations
• Japan
– 1997–2007,
– 64 birth related malpractice litigations, 44 accepted (68 %)
– 1,225m. US dollars (mean) awarded.
• Canada
– 2011
– 894 claims, 293 settlements
– 68 trial, 13 guilty verdict (19%)
Source - Hickson, 1992
Birth related litigations
• USA
– 100 OBGYNs per year
• 9 come across a claim of negligience
• 2.5 have a pre-trial settlement
• 1.4 have a trial (Chauhan 2005)
– 60% of trials result in indemnity payment
– Presence of permanent disability significantly predicts payment (jury sympathy ?) (Brennan 1991)
– Median award:
• 1.000.000 USdollars for mild to moderate neurologic handicap
• 8.000.000 USdollars for severe neurologic handicap (Jury Verdict Research, Inc.)
Source - Hickson, 1992
Birth related litigations
• Turkey;
– 2002-2014, 4470 trials for medical negligience – 3546 verdict not guilty
– 764 verdict guilty (17%)
– 7.254.000TL total payment
Source - Hickson, 1992
Source : Ministry of Health
Requirements of malpractice claim
• The existence of a legal duty
• A breach of this duty by a failure of the
treating doctor to adhere to the standards of the profession
• Injury caused by the breach
• A causal relationship between such breach of duty and injury.
Turkish judicial system
• Same requirements apply for quilty verdict.
• Two type of penalties:
– compensation payment (tazminat) – prison sentence
Malpractice Litigation in Turkey
Civil law court Compensation payment
Criminal law court Prison sentence
Plaintiff dead:
2-6 years
imprisonment Plaintiff injured:
3 months - 2 years imprisonment (depending on severity of injury and negligience)
Sentence can be suspended (5 years) Then dismissed.
Birth trauma
Mechanical Hypoxic- ischemic
Shoulder Dystocia Intrapartum Asphyxia Vacuum/Forceps
Death,
Cerebral palsy, Neonatal Encephalopathy, BPI Facial Paralysis, Bone fractures
Brachial plexus injury
Major issues to be clarified:
1. Was there shoulder dystocia?
2. Was shoulder dystocia foreseable in the antenatal period / intrapartum period?
3. Were the correct maneuvers undertaken in management of shoulder dystocia?
1. Was there shoulder
dystocia ?
50% is
associated with SD
22/63 (34.9% ) of BPI cases were
associated
with SD at our institution
Was there shoulder dystocia ?
• The literature suggests association of BPI and SD in approximately 50% of cases
• This means another half is not associated with SD
• How ?
– Underdocumentation of shoulder dystocia?
– Intrauterine malposition?
– Maternal expulsive forces?
BPI without SD: additional evidence
Mal-
presentation other than breech
increased the odds 73 fold!!
(0.5% in general population)
• Almost in 50% of cases, BPI occur without SD
• Ultrashort second stage increases risk (6 fold)
• Operator experience does not count:
– attending physicians experience or the type of maneuver does not affect outcome
• Posterior BPI: Why does BPI in posterior shoulder occur when anterior shoulder is impacted.?
• Authors conclude that many BPI occur
naturally.
• Maternal propulsive forces most likely
cause BPI
- Was shoulder dystocia foreseable
in the antenatal / intrapartum
period ?
Was shoulder dystocia foreseable in the
antenatal period / intrapartum period ?
• SD cannot be effectively predicted or prevented (ACOG)
• Macrosomia has the strongest association:
– > 4500 + GDM – > 5000
• No other commonly accepted/reasonable strategy
Cesarean sec.
Was shoulder dystocia foreseable in the
antenatal period / intrapartum period ?
3. Were the correct maneuvers
undertaken in management of
shoulder dystocia ?
• Excessive traction should be avoided.
– In United Kingdom, attending physicians have been found guilty at malpractice lawsuits since they applied excessive traction
• No maneuver has been found to be superior
Were the correct maneuvers undertaken in management of
shoulder dystocia ?
Common assertions for guilty
verdict: Examples from UK
• Identify possible risk antepartum risk factors
• Obtain informed consent to proceed vaginal birth if risk factors are present
• Ask for help from a colleague
– During management
– For testimony in trial
• Properly document shoulder dystocia
Shoulder dystocia related injury
medicolegal considerations
CP
• 7 in 1000 deliveries
• 10-50% is associated with intrapartum asphyxia
• Nightmare of all obstetricians
Neonatal findings consistent with intrapartum asphyxia
This is the only criteria changed at new guideline;
In the initial report (2003) pH<7 was an absolute necessity
• pH<7, BE>12 possibly
• pH>7.2 unlikely
Marked heterogenity
Asphyxia not well defined
Other factors consistent with acute peripartum / intrapartum event
• Conversion of category I NST to category III suggests intrapartum event
• Persistent loss of variability indicate a previous insult
Other factors consistent with acute
peripartum / intrapartum event
CP
Intrapartum Asphyxia
Neonatal
Encephalopathy (Replaces
Hyp.Isch.En.)
CP
Neonatal findings consistent with intrapartum asphyxia
• pH < 7.0 was a must in 2003
• In 2014, this was revised Acute intrapartum event severe enough
to cause CP
How to avoid an unfair claim for negligience in case of CP?
Suggesting other etiology
• Microcephaly (evident in 10%
of cases!)
• Fetal anemia (chronic ablatio)
• Neutropenia,
Thrombocytopenia (sepsis even cultures negative)
• Involvement of cerebral cortex
• pH > 7.20
• Look for placenta: Villitis
Suggesting acute intrapartum event
• Involvement of basal ganglia
• pH<7.0, BE>12 (even than CP rate may be as low as 20 %)
• Correct pH for P CO2 acute hypercapnia decreases pH
Error is an inevitable accompaniment of the human condition, even among
conscientious professionals with high standards. Errors must be accepted as evidence of system flaws not character
flaws.
Leape, 1994
