Permanent neonatal brain injury: themes and legal resolution

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

  1. Investigate eligible cases to take proactive action to reduce legal costs and improve the experience for affected families & staff

  2. Share learnings with the hospital and broader system

  3. Ensure the legal process and compensation is not a barrier to Open Disclosure and other ethical activities

  4. Preserve evidence in case of later litigation where liability is not admitted

  5. Improve the real-time compensation process to the benefit of families and reduce costs through early interventions

  6. 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.

  7. 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:

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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:

  1. Education and activities to improve situational awareness of care providers.

  2. Enable and enhance escalation of concerns - within and across teams.

  3. Risk assessment during pregnancy and labour.

  4. 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.

  5. Improved counselling before vaginal birth after caesarean (VBAC).

  6. Improved response to harm in healthcare: OD, learning culture, just culture & staff support.

  7. 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.

Feedback

I recently sent an email to our medical supervisors with just this one word in the subject line: Feedback. I asked them to reflect on the primary emotion and first thought when they saw the subject header in their email list. What did the word 'Feedback' bring to front-of-mind? It may have been: what do I need to know? Who said something about me? Have I done something wrong?

Feedback is a critical part of our development: it aids adaptation, learning and improves performance. Yet, for many doctors, the prospect of feedback is feared. For some, this is based on previous experience of receiving feedback in a harmful way. A negative critique in public, or a focus on personality or character rather than behaviours and skills to be developed.

Many doctors – even senior ones – experience Imposter Syndrome: recurrent self-doubt, despite clear evidence of academic and clinical success. Even outstanding performers can struggle, and medical culture perpetuates the incorrect assumption that those doing well know they are doing well.

As the current generation of supervisors, you can change the medical culture for the better. By taking an intentional approach to feedback for your trainees, they grow more quickly in clinical skills and self-confidence even if you have corrective advice to give.

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Formative feedback
This is the day-to-day, week-to-week feedback we all need to guide our work practice. Experienced practitioners understand that feedback comes from many sources, but junior doctors often don't recognise this. We hear that feedback was not forthcoming, yet it was clear that supervisors did provide guidance  – it just hadn't been explicitly labelled as feedback. See the box for an example of formative feedback. Formative feedback is more immediately relevant for learners – given the proximity to recently performed tasks and behaviours.

Empowering feedback
Feedback is most useful when it becomes part of a daily or weekly practice – set the expectation that you will give feedback to help the trainee grow. We need to create a positive learning culture and encourage learners to develop an interest in receiving feedback. Feedback is most useful for learners when it fulfils the following criteria:

  • It takes place close to the time of the learning event and in private

  • It's a two-way conversation.

  • Alignment with the learner's pre-established goals and objectives – the Term Orientation Form for interns.

  • It promotes reflective learning.

  • It avoids personal comments and judgments of character.

  • It concentrates on behaviours that can be changed and skills that to be developed.

  • It includes positive re-enforcement – even if there is no corrective advice to give.

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Radical candour – care personally, challenge directly
Sometimes it can be difficult for supervisors to give feedback if the learner finds it challenging or even awkward. Kim Scott describes the need for 'radical candour' – guidance at the intersection of caring personally and challenging directly. Scott calls the x-axis shown here the 'willing to piss people off' axis, and the y-axis is about how much you care.

Radical candour in our interactions doesn't always come easily. We've grown up learning that if you don't have something nice to say, then don't say anything at all. Of course, it's easier to let these opportunities slip by, not to build a mentoring relationship. However, as supervisors, we have a moral obligation to those in our charge.

Note the alternatives to radical candour. Consider the aggressive doctor who berates the RMO in front of the ward round, the registrar that criticises the nurse at the patient's bedside. Feedback for these doctors must centre on both the inappropriate challenge and the lack of care; else, they slip into manipulatively insincere behaviours. Many supervisor omissions occur in the quadrant of ruinous empathy. No one wants to tell the person that they have a problem; they may care about the individual but don't have the courage or skills to confront them openly about what's going on.

Summative Feedback
This takes place at the end of a rotation or course of study and provides a final performance assessment. Summative feedback is the End Term report that Doctors in Training need to have completed. Although there should be no surprises by the time of the End Term report, it is essential to take the time to provide this summative feedback in person and give attention and ratings to the various domains of practice. Please complete the free text comments as trainees particularly value this qualitative feedback.

Summative feedback is an excellent opportunity to correct inappropriately low self-assessments of trainees. The consequences of failing to support the unconsciously incompetent doctor are well recognised. What is less clear is the detrimental effect of failing to recognise and support the unconsciously competent among us. I expect this is the cause of much self-doubt and may form the basis of the Imposter Syndrome described earlier.

Danny Tucker

Why the facts don't convince us

I came across this great little video (2m46s) about why facts don’t convince people. It serves as a sound introduction to the broader topic of how to manage conflict and influence others. The reality is that we ourselves are not unchanging and usually conflict will influence us as well. But that’s a good thing!

We are not thinking machines. We are feeling machines that think.
—Antonio R Damasio, cognitiive neuroscientist

Strategies for learning

In my previous post, I outlined the three core skills for success in work and life. One of these is Meta-learning, which essentially means understanding how to learn best. Having the drive to be a lifelong learner alone isn’t enough - we need to constantly adapt our techniques, understand our own strengths and limitations and be open to doing things differently.

The infographic below is from information by The Learning Scientists and are based on sound educational research. I want to outline some more about this from Scott Young, an ‘Ultralearner’ who has developed skills to learn four languages in a year and complete MIT’s four-year computer science curriculum in 12 months. He knows what he’s talking about and much of it fits with the evidence below. Links to both these references at the end.

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Focus

We need to be able to switch on our focus quickly and to be able to focus intensely. There are three important areas here: avoiding procrastination, failing to sustain focus (distraction) and optimal arousal state for learning.

We procrastinate because we have another task that craves our attention, or because we have an aversion to doing the actual task at hand. If you're struggling, the key to starting to set yourself a '5-minute rule'. Commit to starting one manageable task and devote five minutes to it. The fear of starting or urge not to work is temporary, and once you start, will likely disappear. From there, use the Pomodoro technique of alternating 25 minutes work with 5 minutes rest or reward.

We all know what distracts us. Our environment includes phones/internet, noises and background multitasking. Our mind is often the culprit presenting us with negative emotions, restlessness, daydreaming or rumination. Mindfulness, including mindful meditation, can help with the latter, and we need to be aware of and manage aggressively the former. Sometimes the task itself can enhance distraction - some people find reading or watching videos makes distraction more likely. Active use of the mind and notetaking can help avoid this.

Optimal arousal state for learning is a bell-shaped curve. If you are sleepy, then you'll not likely be able to learn effectively. If you are overly anxious or stressed then similarly. Recognise where you are in terms of arousal and find out what level works best for you.

When you are training for focus, be intentional. Recognise where you are with the above three considerations. Increase your time for focused study gradually, and you will come to see your frustrations as challenges.

Directness

The Learning Scientists talk about ‘concrete examples’ but Scott goes one further. Directness is about doing all you can to tie the learning to the situation or context that you will be using the material. If you want to be a great doctor, then you won't become one by reading books in a library. It would be best if you saw patients, challenge yourself and learn in real-life contexts - on the ward, in clinic or the operating theatre. If you are studying specifically for an oral exam or OSCE - then practice under the same conditions and, if possible, physical environment that you'll be taking the exam. If that's going to be virtual, then get on Zoom or Teams with your colleagues and mentors. Weld your learning through directness as much as possible—real-life situations or immersive learning through simulation.

Drill

It's super important that you know your areas of weakness through a combination of self-awareness, experimentation and rigorous feedback. What is your rate-limiting step in performing at the top of your game? After you have identified this, you need to use drill to bring that area up to speed. Then re-integrate into the bigger picture:

  • Direct attempt

  • Identify the rate-limiters

  • Drill

  • Bring back to direct practice

This is what athletes do for complicated manoeuvres and what musicians do for challenging parts of a score. What drill can you do?

  1. Time slice - break down the task, practice complex bits and then bring it back together

  2. Cognitive components - break down the skill into parts, for example, if communication skills challenge you under pressure, then practice without the stress first, and then up the ante.

  3. Copy - try using someone else's examples or words, and concentrate on the delivery. It will be easier to make it your own once you've practised for a while.

It's important to remember that mentally strenuous exercises provide a more significant benefit to learning than doing something easy.

Retrieval: Test to learn

"It pays better to wait and recollect by an effort from within than to look at the book again" -William James, psychologist.

Research has shown that free recall leads to almost 50% more retention compared to repeat text review (reading through your notes) or concept mapping. BUT, the repeat review group predicted they would do best, and the free recall group expected they would do worse.

The judgment of learning theory indicates that if the learning task feels effortless and smooth, we believe that we learned it. Repeat review is simply about recognition - not learning. Difficult retrieval unequivocally leads to better learning, and delayed testing is better than immediate. Another identified benefit is that regular testing of previously studied information makes it easier to learn new information.

So what do you practice retrieve? The answer is anything that you will need to actually do when undertaking the task at hand. Retrieval tactics include:

  1. Flashcards - best for cue-response paired learning, less good for concepts.

  2. Free recall - write down all you know about the lecture on a piece of paper. This one is difficult!

  3. Question book method - when taking notes, rephrase what is recorded as questions to ask yourself later. It's most useful to restate the 'big idea' of a chapter as a question, not the minute detail.

  4. Self-generated challenges - for skill practice, not just factual recall.

  5. Closed book concept-mapping.


Feedback

Feedback is one of the most consistent aspects of the strategy used by people who need to learn a lot and learn it fast. It features prominently in research about the use of deliberate practice to acquire expertise. It's an essential ingredient to reaching expert levels of performance.

Research tells us that feedback needs to contain information to guide future learning. Ego-directed feedback, on the other hand - also called praise - has been found to harm learning. Also, feedback that is a personal evaluation ('you're so smart' or 'you're lazy') negatively impacts on learning. The types of feedback you need are:

  1. Outcome feedback

  2. Informational feedback

  3. Corrective feedback

Outcome feedback is the least useful - you either pass, or you don't. You know that you did something right or wrong, but not really how to fix it. It can give you a motivational benchmark against your goal or guide you on the relative merits of different methods you might be trying.

Informational feedback tells you what you're doing wrong, but not necessarily how to fix it. Practice exams can sit in this domain unless the marker provides detailed feedback. Also, non-experts or peers testing each other can land here, unless you have thorough background notes.

The best kind of feedback is corrective feedback. You generally need access to a tutor, coach or mentor, although you can get this with high-quality flashcards for example.

Because this type of feedback is so important, it's advantageous to consider what resources are available to you. Can you organise a meeting with an expert in an area where you are struggling? Make sure that you utilise fully the face-to-face sessions you get with your tutors. Use this time to clear up conceptual issues identified through other types of feedback and retrieval testing.

Feedback timing
When is the best time to get feedback? Research is in favour of immediate feedback - although you still need to try your best to answer your questions first; otherwise, it will turn retrieval practice into passive review, which is not helpful! When you're working on feedback to improve your skillset, don't forget about meta-learning - the core of what we are discussing here. Can you assess how quickly you are learning, what learning techniques and at what intensity are giving you the best return on your effort?

Receiving feedback isn't always easy, especially if you process it as a message about your ego rather than your skills. It gets easier with practice, and once you get into the habit of receiving it, it becomes easier to process without overreacting emotionally.

Retention

Losing access to previously learned knowledge has been a problem for educators, students and psychologists since the beginning of time.. The skill of retention depends on using strategies and there are four main mechanisms for this. 

Memory mechanism 1: repeat to remember. One of the best tips about studying, supported by research, is that if you care about long-term retention, don't cram. Spreading learning sessions over more intervals, over more extended periods leads to better performance in the long run. Another strategy for applying spacing is to schedule refresher retrieval self-tests.

Memory mechanism 2: proceduralisation. When you practice something intensively, it will become proceduralised. Examples of this include riding a bike or touch-typing. A strategy for playing this might be to ensure that a certain amount of knowledge is wholly proceduralised before practice concludes. Another approach might be to spend extra effort to proceduralise some skills which will service cues for other knowledge.

Memory mechanism 3: overlearning - practice beyond perfect. Where overlearning has been studied, the duration of learning is extended, refining the core elements of the skill. A second strategy is an advanced practice, going one level above a specific set of skills so that the core parts of the lower-level skills are overlearned, as one applies to them in the more difficult domain.

There’s quite a bit of information here and you will have to experiment to discover what works best for you. Some of the strategies are hard and some run counter to what you may have been doing to date. But that’s part of self-development. We’re all a constant work in progress.

Danny Tucker

More:
Learning Scientists FAQ about the 6 strategies
Learning Scientists blog
Scott Young’s blog