What happens when monitoring during childbirth goes wrong?
A child recently succeeded in a claim that negligence at his birth caused a severe and disabling brain injury. The case is interesting in a number of respects. It considers what advice should be given to a woman in labour for her to consent to different forms of monitoring.
It looks at 2 midwifery failures. It also shows quite how complex it can be to establish when and how a lack of oxygen to the brain causes loss and short periods of delay count.
The mother had a first child by caesarean section. She then became pregnant again in 2014. A consultant midwife advised on giving birth naturally. Because this would be vaginal birth after caesarean section – ‘VBAC’ – there was a risk of the uterus rupturing through the surgical scar.
Her birth plan, agreed at an antenatal appointment, was to have a water birth. Only one room in the delivery suite – room 10 – had a pool. At the delivery suite the baby’s heart beat could be continuously monitored (using CFM – continuous fetal monitoring). If that room were unavailable she could go to a midwife-led birthing centre with more pools. However, there she would have to have only intermittent monitoring with IA (intermittent auscultation). This meant that would be periods when the heart beat was not being monitored and risked delay in detecting any problems.
She went into labour on 23 May 2015 and was admitted. Room 10 was not available and so she went to the birthing centre. Labour was monitored by IA although less often than ideal because the unit was busy. An emergency developed and she was taken to theatre. It was found that her uterus has ruptured. Her baby suffered acute profound hypoxia (oxygen deprivation) was brain damaged. He was left with cerebral palsy, microcephaly and cognitive damage.
She brought a claim on her baby’s behalf alleging negligence. Her allegations were (in brief):
1. She had been inadequately advised. When admitted in labour, she should have been warned of the risks of a plan which involved IA rather than CFM. Those risks were higher because the unit was too busy to ensure close monitoring and the staff there was less experienced. Had she been correctly advised she would have accepted CFM.
2. IA took place only every 15 – 20 minutes rather than every 5 minutes from the second stage of labour (the pushing stage). As a result there was a delay in detecting a slowing heart-beat.
3. The midwives should have called for obstetric assistance earlier.
On her case, but for these breaches of duty, midwives would have become aware of abnormalities in the baby’s heart rate and the mother’s uterine rupture earlier. Delivery would have taken place by caesarean section earlier. The baby would have avoided some hypoxia and would have only had mild and not severe brain damage.
Advice and Consent
An important issue was what advice she was given and whether it was enough. There was a dispute about what she was told and when. The court found that she was correctly advised during the antenatal period. She was told of the risks of VBAC and that they could be reduced by close monitoring. She was also told that CFM was ‘better for baby’ than IA but not that IA increased the risk of hypoxia and that hypoxia could cause brain damage.
However, the judge was critical of a lack of advice when she went into labour. At that stage she should have been invited to reconsider her birthing plan given that monitoring would need to be by IA. 2 factors increased the risk: the unit was busy and IA monitoring might not take place as often as needed; and the lack of midwives experienced in VBAC, particularly with monitoring by IA.
The test of what advice should be given is set out in Montgomery v Lanarkshire Health Board, also a birth injury case. The duty is to take reasonable care to ensure that a patient knows the ‘material risks’ of any recommended treatment, and of any reasonable alternatives. This applied to IA as opposed to CFM. A risk is ‘material’ if ‘a reasonable person in the patient’s position would be likely to attach significance it, or the [midwife] is or should reasonably be aware that this patient would be likely to attach significance to it’.
Advice therefore needs to be patient-specific and depend on what a particular patient would want to know. People are different. Some want to know more and some less. People have different approaches to risk and weight outcomes differently. Some are more able to process detailed advice than others and want more information. According to the judge, this mother was articulate, intelligent (she had a degree in psychology), she had a good understanding of risk and would have chosen the safest option. The court found that she should have been more fully advised of the risks of IA.
It also found that had she been properly advised, she would have chosen not to have a water birth and to have CFM. This meant that her baby’s abnormal heart rate would have been detected earlier.
Management of her labour
The court found that her labour had been mismanaged in 2 respects. First, she was not monitored as often as was necessary. She was only monitored every 15 to 20 minutes rather than every 5 minutes once the second stage of labour started. This is when the cervix is fully dilated and pushing starts. The second is that the midwives should have called for help from an obstetrician earlier. The mother was in continuous pain from around 01:00. This was an indication of uterine rupture which should have prompted a call for assistance.
How would events have been different?
To succeed in a claim, she needed to persuade the court that with correct advice or management the outcome would have been better. This involved evidence as to when a number of events, the timing of which was uncertain, must have happened: when the second stage of labour probably started; when there were signs of uterine rupture; when the fetal heart rate became abnormal; how long the period of hypoxia lasted; whether some oxygen reached would nevertheless have reached the brain; and when those abnormalities would have been detected. All of this was complex. It involved a very careful and detailed examination of the evidence and in particular the views of experts.
The judge found that the second stage of labour started at 00:35 and the rupture happened between 00:45 and 01:00. Had she been continuously monitored, it would have been clear by 01:00 that this was a potential emergency. The midwives should have sought assistance by 01:05. Delivery would have taken place by 01:31 (instead of 01:46) and resuscitation by 01:32. In short, the baby would been born 15 minutes earlier.
There was then a complicated issue as to what damage would have been avoided. This involved considering scientific research as to how long it takes for partial hypoxia to cause brain damage. The 2 sides had different views of how a key piece of research (by Myers and others) should be applied. The judge found that hypoxia would have been causing mild brain damage until 01:35 after which point the damage would have been severe. Since resuscitation should have taken place by 01:32, the negligence had caused mild brain damage to become severe.
The claim therefore succeeded. The amount of damages was not assessed and will either be resolved by negotiation or dealt with at a further hearing.
The claim illustrates a number of points.
1. This is another example of a new patient-centred approach to advice and consent in practice. The test of whether advice is adequate is not what clinicians (in this case midwives) would regard as reasonable practice but what a patient like this particular mother would want to know. That will vary from person to person and the courts will pay attention to the different characteristics of different people – in this case, her intelligence, understanding of and approach to risk.
2. It also shows that giving advice and obtaining consent is part of a process. The advice this mother was given in the antenatal period was adequate. But when circumstances changed and she was admitted to hospital in labour the advice needed to be reviewed. Decision-making in the ante-natal stage may well be very different to decision-making when facing the realities of labour. The advice also needed review because the unit was busy and because she now could not both have a water-birth and adequate monitoring.
3. The case also illustrates quite how complex birth injury claims are. They involve painstakingly piecing together on the basis of sometimes limited evidence what actually happened and what would have happened in a hypothetical scenario had there been no breach of duty. Not only is there often a degree of speculation there, but the science may be uncertain and involved detailed consideration of expert argument. The lawyers involved need to have real expertise to understand the details of the case and research evidence on which the medical experts rely.
Expert legal advice about birth injury
If you’ve got questions about the standard of care received during birth, or are concerned your child might have a birth injury, then our team of specialist birth injury solicitors can help. Contact us today to find out more.