Oliver’s mother was induced at 38 weeks gestation. Labour progressed well initially, until the later stages at which time there was an unrecognised deterioration of the CTG, which monitors fetal heart rate, as well as maternal contractions during labour. Once this was recognised, the decision was taken to deliver baby Oliver by emergency caesarean section. Oliver was born in poor condition, required ventilation and was subsequently transferred to a tertiary centre for therapeutic hypothermia and neonatal care. MRI performed at 7 days identified evidence of brain injury related to intrapartum hypoxic ischaemic encephalopathy.
Oliver’s experience is discussed in the latest publication of the UK Early Notification Scheme for Preventable Injury During Childbirth. Oliver’s birth was referred to NHS EN team, who reviewed the matter, and instructed solicitors within 2 months of receiving the report of his birth. Independent medicolegal reports were instructed, and within 9 months, the hospital agreed there had been a breach in the legal duty of care, resulting in an avoidable delay in Oliver’s birth. Had this not occurred, they agreed that Oliver would have avoided injury.
The hospital wrote to the family confirming the conclusions, apologising for the failings in care and outlining the potential steps the family might wish to take should they wish to receive compensation. Subsequently, interim payments were made, and funding for counselling was provided to Oliver’s parents.
For all cases discussed here, and within the report, at the centre of each one is a family, devastated by an unexpected and tragic event, leaving their lives changed forever. Help for these families and prevention of future harm is central to the scheme, analyses and the reported publication. Every case or claim is a family and tragedies like this can only be avoided by systematic review and learning.
Litigation costs the NHS £5 billion annually, and 60% of claims relate to obstetrics. I wrote about the Early Notification (EN) scheme in 2019, after the first report was released. This month’s publication is a progress update, analysis of case themes and identified areas for action.
Aims of the EN Scheme
Investigate eligible cases to take proactive action to reduce legal costs and improve the experience for affected families & staff
Share learnings with the hospital and broader system
Ensure the legal process and compensation is not a barrier to Open Disclosure and other ethical activities
Preserve evidence in case of later litigation where liability is not admitted
Improve the real-time compensation process to the benefit of families and reduce costs through early interventions
Outcome first approach - identification of high-risk cases, so actions can be quicker and more specific. Early admission of liability cases must have an abnormal MRI, recognising that other cases may be revealed in course of time.
Expert summits - multiple EN cases considered at a single point, including medicolegal experts, counsel, instructed panel solicitor and hospital representatives. More details of this process is included in the full report.
Review of 100 cases: clinical themes
Before looking at the cases where organisations admitted liability for permanent brain injury or death, a review of 100 cases referred to EN reveals some familiar themes.
56% were low-risk pregnancies
Labour induction in half of the cases
43% were born by caesarean section, 34% were spontaneous births
22% had issues identified with neonatal resuscitation: delay in senior support, inadequate resuscitation or delay in intubation, communication and equipment problems
Clinical factors included:
Delay in birth 60% of the time - most commonly a delay in escalation or CTG misclassification. One-third were Category 1 (the most urgent) caesarean sections.
Fetal monitoring 62% had incorrect CTG classification, a delay in escalation, a delay in acting once recognised or guidelines not followed. Clinician loss of situational awareness was a recurrent theme.
Evidence of infection: missed due to poor documentation, failure to recognise and treat antenatal Group B streptococcus Urinary Tract Infections, and a failure to recognise clinically apparent sepsis.
Uterine scar rupture: in 60% of cases, antenatal counselling was below standard. 80% of ruptures were associated with induction of labour, and one-quarter of those inductions used prostaglandins, which are known to be unsafe in this situation. In 80% of cases, there was a delay in recognising the uterine rupture. The published literature indicates that fetal heart rate changes on CTG are recognised to be the presenting abnormality in 66-76%. In this series a fetal bradycardia occurred in 80% and there was a delay in acting on the rupture once recognised in three quarters of cases.
Vaginal breech birth - 60% of these were planned, and 80% in first time mothers.
The above themes are well recognised from the published literature of babies affected by hypoxic ischaemic encephalopathy (HIE), other medicolegal reviews and enquiries into maternity services.
Admitted liability findings
The report looked more closely at 20 referred cases where brain injury, breach and causation were confirmed, leading to proactive admission of liability.
A review of these cases is critical, because experts have acknowledged that injuries were preventable, indicating the place for system and individual learning.
90% of the cases had issues with fetal monitoring
90% of babies had a diagnosis of HIE grade III, and the remainder HIE grade II.
All babies had an MRI on day 5-12, which demonstrated profound hypoxic injury
95% of families had Open Disclosure and 18 of the 20 families were involved in the incident investigation process.
Time from incident to liability admission was average of 18 months. This compares to 7 years for historical, non-EN control cases.
Legal costs were reduced by two thirds by the EN process
Other benefits identified were: earlier financial and psychological support for families, earlier therapeutic support for affected babies and children, and improved understanding and learning for staff close to the event
Impacted fetal head at caesarean section
This situation is recognised as an emerging and consistent finding in recent medicolegal reviews and high-profile cases internationally, including coroner’s reports in Australia.
Impacted fetal head (IFH) occurs when a caesarean section is required late in labour, and the baby’s head is already deep in the birth canal. It requires the baby’s head to be manually moved back to the caesarean incision for delivery. Other series have suggested it occurs in around 1.5% of all births or 11% of emergency caesarean sections.
In this series, IFH occurred in 25 cases (9%). In addition to HIE, other injuries included intracranial haemorrhage, subgaleal haemorrhage, skull fracture and death.
38% were failed instrumental deliveries and in half of the cases a senior (consultant) obstetrician was not present.
Techniques used to deliver the baby were varied, and the lack of evidence-based consensus or clinical algorithm for the management of IFH makes form recommendations to improve care difficult. Nearly 50% followed the use of a fetal pillow device, which is reported to reduce the incidence of IFH complications. Five cases included the use of obstetric forceps before the baby’s head was disimpacted, which is not standard of care. A draft RCOG Scientific Impact Paper is under consultation and the issue is covered briefly in a 2019 RANZCOG Statement on caesarean section.
Current and new work arising from the EN Scheme
These findings and previous reviews have identified work to be completed across organisations and systems. To date, these include:
Education and activities to improve situational awareness of care providers.
Enable and enhance escalation of concerns - within and across teams.
Risk assessment during pregnancy and labour.
A national program to reduce brain injuries with the principle focus of 1. detection and response to suspected intrapartum fetal deterioration. 2. Improved management of the impacted fetal head.
Improved counselling before vaginal birth after caesarean (VBAC).
Improved response to harm in healthcare: OD, learning culture, just culture & staff support.
Strengthen working relationships between organisational, clinical, patient safety and legal colleagues. The aim is to optimise investigations and understanding, evidence preservation, identification of human factors and other learnings and improve communication with both families and staff.
The full report can be downloaded here.
Dr Danny Tucker is a senior Obstetrician & Gynaecologist based in Queensland. He is an independent medical expert for clinical incident reviews and medicolegal services.