Childbirth Injuries To Mothers
In this series of articles, we are looking at birth injuries affecting the mother as opposed to the baby. The vaast majority of mothers give birth to healthy babies without any harm to the mother. On some occasions however, the outcome for the mother is not so good with injury occurring that may lead to short, medium or even long term consequence. In some, but certainly not all of these cases, the maternal injury was caused by neglect and it is to that neglect – and only in cases of clearly proven neglect, that the law addresses the issue of compensation.
It is somewhat of an aside but I often feel the cold breeze of unfair criticism on the back on my neck when I hear the medical profession disparage my profession for encouraging litigation. Whether you are a patient or a client, you are entitled to be told if your care has fallen below an acceptable level to the extent that it has harmed you. If the medical profession will not tell you the truth to patients – as it quite obviously and obstinately refuses to do – then it falls to the legal profession to help people get answers to questions about their medical treatment, and in appropriate cases, take action for some reasonable redress on their behalf.
Addressing again the issue of maternal injuries in childbirth, this second article in the series looks at what happens when in the course of a delivery, a part of the bowel or the bladder is perforated, how that injury occurs, what harm can arise from it and in what circumstances it constitutes a fall below the appropriate standard of care – what we call a ‘breach of duty’.
In childbirth the bowel and bladder do not get damaged in the course of a normal vaginal delivery. Such injuries can however occur in the course of a caesarian section (C-section) because the mother’s abdomen is opened by the surgeon and in the course of the dissection through to the baby inside the placenta, other organs must be moved or disturbed and sometimes this leads to a ‘perforation’ which is just another way of describing an hole or opening through which bladder or bowel contents may leak into the surrounding area of the abdominal cavity.
The leak of bladder contents is not typically as serious as the leak of bowel contents because urine is a sterile material whereas the bowel contains the faeces, 50% of which comprise dangerous E. coli bacteria and is more likely to lead to severe infection called ‘sepsis’ which is life-threatening. Nevertheless, both types of perforation need to be identified quickly and repaired.
The mere fact of a perforation is rarely regarded as a basis for a case in negligence because perforation is a known risk of such surgery. Like most things in law, this statement is qualified with exceptions but it is generally true – so long as the surgeon who is the gynaecologist/obstetrician has identified the perforation, repaired it and cleaned the abdominal cavity of leaked contaminants.
Unfortunately, a perforation is not always identified during the surgery. Instead, the mother’s abdomen is closed without a repair being done - presumably because the surgeon was unaware of the injury caused – and over the following days, an infection develops to the point that the mother becomes obviously unwell.
Such infections are sometimes detected while the mother is still in hospital though with modern post-natal care periods in hospital becoming shorter, an increasing number of such mothers are being diagnosed at a later stage. That is not to say they are always feeling well on discharge. We have come across a number of situations where the mother was voicing concerns about her own health prior to discharge from hospital but their concerns were dismissed.
Whether the infection is identified early or late is significant. Infections are progressive and early detection, leading to early treatment will typically lead to a shorter period of illness and a better outcome.
Late detection of such infections can lead to very serious consequences and quite apart from the infection itself, the perforation will generally require another opening of the abdomen to identify the perforation, repair it and washout the area. In the course of such an operation, other tissues might be identified as having been damaged by the infection and require to be cut away or ‘resected’. If a section of the large intestine or ‘colon’ has to be resected, then the surgeon will typically perform a colostomy which will typically be temporary and be reversed at a later stage although the procedure in certain circumstances may need to be permanent which is of course life altering for a young woman.
Whatever the extent of the harm however, the legal investigative work we do in determining if the medical care fell below an acceptable standard is roughly
Similar. This failure of care is what we call a ‘breach of duty’ and it is only when an independent expert confirms this breach and that the harm or injury was caused or materially contributed to by this failure (in other words that the bad outcome would not have happened anyway, in the absence of the error) that we can bring legal proceedings on our client’s behalf.
So in summary, perforations of bladder and bowel can occur in the ordinary course of a C-section and it does not mean the surgeon has been negligent. If however the C-section was not necessary or ought to have been avoided or if the perforation has not been identified and repaired during the surgery, then it will cause harm to the patient and that harm will in most cases be a case of negligence.
In the next article, we will look at some medico-legal issues arising from the failure to deliver the placenta fully.
n this series of articles, I am looking at birth related injuries affecting the mother as opposed to the baby. The vast majority of mothers give birth to healthy babies without any harm to the mother. On some occasions however, the outcome for the mother is not so good with injury occurring that may lead to short, medium or even long term consequence. In some of these cases, the maternal injury or poor outcome was caused by neglect and it is to that neglect – and only in cases of clearly proven neglect, that the law addresses the issue of compensation.
Earlier articles in the series looked at episeal tears and perforations to bowel or bladder and how these occurrences can give rise to legal liability. Now I want to address Retained Products of Conception (RPOC). This term refers to placental and/or fetal tissue that remains in the uterus after a spontaneous pregnancy loss (miscarriage), planned pregnancy termination, or preterm/term delivery. As with all aspects of obstetrics and gynaecology, this is a complex area of medicine where lawyers rely on expert opinions from doctors and so what is offered here is not medical advice but a simple overview of the medico-legal issues that can arise where the management of this issue falls below an acceptable level of care and the woman suffers ill-health and harm.
RPOC in simple terms is where in the case of a birth, miscarriage or abortion, some tissue from the placenta or foetus is left inside the uterus or within the fallopian tube in the case of an ectopic pregnancy. In any of these situations, the tissue in question will decay and cause infection which in turn, if not addressed, will lead to varying symptoms of illness in the woman – typically fever, uterine bleeding, pelvic tenderness and pain. Such an infection can, if it goes untreated, cause damage to adjoining tissues and spread beyond. It can then lead to systemic illness such as sepsis or localized harm potentially threatening or damaging fertility or causing ongoing pelvic pain. It is a serious matter and for that reason doctors and particularly obstetricians and gynaecologists are trained to avoid the occurrence of RPOC and be alert to the signs and potential for such resulting infections.
The cases I have worked on in this area have mostly related to two categories rather simply described as:
A failure to identify RPOC from an ectopic pregnancy which occurs when the egg is fertilized and develops within a fallopian tube. Such a pregnancy is not viable and can cause damage to the tube itself which may or may not be reparable by the surgeon. The consequences of the loss of a fallopian tube which may then arise can be of moderate significance or of major significance depending on whether the woman has a second functioning fallopian tube or not and will - in terms of degree of harm - be influenced by whether or not she has an intention to have further children. These issues will vary from case to case.
2. Failure to deliver the placenta in full. The third stage of labour is marked by the delivery of the placenta. The placenta is not always delivered intact and this can be a affected by the health of the placenta itself and/or the mode of delivery. The complication is less likely to arise in deliveries by caesarian section. In all cases however the placenta will be examined following delivery to ensure the entire placenta has been removed, a process that in some cases can be akin to rebuilding a jigsaw. Where an incomplete placenta is noted, the missing part or parts are the RPOC. The body can resolve this problem itself in many but not in all cases and so the woman ought to be informed and closely monitored to ensure that the RPOC are not retained for a sufficient period to allow infection to occur.
In either case, ultrasound is a valuable diagnostic tool to monitor the situation and either surgery on the fallopian tube or by means of a procedure to clean he uterus known as a Dilation and Curettage (D&C).
There are long established and regularly reviewed procedures to monitor and treat these potentially harmful conditions and these are published by the relevant medical standards organisations for obstetricians and gynaecologists and between Ireland and the UK, these practices are very similar. Because of this similarity, we are able to seek independent expert advice on queries we receive from doctors in the UK.
As an aside here, many people comment on the fact that we always work with UK doctors in our cases and suggest that this is evidence of an ‘old boys club’ among Irish doctors. I do not subscribe to this view. I think it is important that we maintain a harmonious medical profession in Ireland, one where doctors are not giving evidence against one another in court but can act together as a relatively small and collaborative unit for the advantage of patients throughout what is a very small county. It makes sense therefore to ask ‘outsiders’ to comment on the quality of care when queries arise. We are after all dealing with mistakes, not deliberate acts and mistakes happen to us all in our work, even when we try to be careful.
Not all RPOC related infections will be an occasion of negligence but to ask questions or seek an independent opinion on whether such an infection, often leading to very serious illness and even lifelong harm should have been avoided is justified.
In the RPOC cases that our firm has worked on, we have seen a high incidence of criticism from the independent medical reviewer which tells me that our clients have a very good sense of when their care has been deficient. In other words, when they thought they had been let down by the hospital, they were nearly always correct.
A recent post regarding the consequences of 3rd and 4th degree perineal tears has caused a lot of mothers to contact me with their own very personal stories of how tears, often left untreated or poorly treated, had brought about huge changes in their lives. Tears occur commonly and with the best of care - but when they arise and are not treated properly it is wrong; it is a failure of care and the avoidable and unnecessary harm that follows can change a woman's life dramatically for the worse. Typical harm caused by such medical negligence includes incontinence, loss of confidence, depression, isolation and loss of enjoyment of intimacy.
I thought therefore it would be helpful to set out the facts of a fairly typical recent case and how we dealt with it leading to a successful outcome in terms of compensation. It is of course the case that the legal work we do is not focused on treatment - but quite often better treatment advice flows from the legal process through access to independent medical experts that we work with on our clients behalf.
Our client, a 27 year old mother of 2 was having difficulty in labour and the obstetrician was present. In the course of delivery, she had a perineal tear. There is no particular explanation for the tear in the notes but tears are a normal event in the course of labour. 95% of first time mothers experience some degree of tear during vaginal delivery. What was interesting about the medical records in this case was that the tear was described as being 2nd Degree – meaning the tear extended to the vaginal lining and some deeper tissues but did not disrupt the anal sphincter muscle which would be a 3rd Degree tear or even a 4th Degree tear if it went further, extending through the rectal lining. Our client’s tear was then repaired by suturing right there in the delivery room by a relatively junior doctor who was working with the obstetric team.
Unfortunately, our client did not make a good recovery. She has a lot of pain in the perineum (that is to say the area between vagina and anus) and shortly after, she noticed problems with urgency when she had a bowel movement and was having problems with soiling of her clothes which was very distressing for her. In the early days and weeks she assumed this was a temporary problem while she recovered from having her baby but with time, while the pain eased somewhat, the urgency and loss of continence continued and even worsened. Her confidence was also being destroyed and she felt unable to go far from a toilet lest she have an accident. She felt bad about herself and bad about what had happened to her. She was also experiencing a lot of pain during intercourse, making physical intimacy with her partner unworkable.
Over the following months and years, our client sought help through the same hospital where her baby was delivered but no interest was taken in her symptoms beyond offering physiotherapy. It was as if this was a normal though unfortunate complication of having a baby and she would just have to put up with it. Eventually however she was examined by a more enlightened doctor who referred her to the specialist unit at the National Rehabilitation Hospital(NRH) in Dun Laoghaire. The NRH has developed an expertise in this area because they work with so many people who suffer paralysis and the same issue of anal sphincter paralysis arises. In the NRH she met for the first time with a specialist surgeon who confirmed that the tear she had suffered originally had been much worse than was noted by the doctors who treated her originally. Examination of her sphincter (the ring of muscle that encircles the area of the anus and is so vital for maintaining continence) revealed that it was offering absolutely no control of her anus.
Some time following this discovery, she contacted our office as she was very angry that for years she had been left untreated with such a debilitating condition. Worse still, she had been told that with such a passage of time, there was no easy fix for her problem and the greatest likelihood was that any improvement now would be modest. For a young woman with a young family, this was terrible news to receive. In common with most of our clients, she first of all wanted answers to about her case and liked the idea that we could take up a copy of her medical records and ask a leading expert in the UK to examine them but also examine her and give a completely unbiased assessment of what had gone wrong and what might now be done to remedy the problem.
We took these steps and learned from the UK based expert that the tear she had suffered in labour certainly a 3rd degree tear and very likely 4th degree. He said that the failure to realise the extent of the tear was an unacceptably poor standard of care. He also said that such a tear should have been repaired in a surgical theatre, with appropriate surgical lighting and by an experienced surgeon trained in anal sphincter repair – not by a junior in the delivery room. Interestingly he also said that such repairs of complex tears should only be performed under general anaesthetic or epidural because the muscles in the perineum need to be relaxed fully to give the best chance of an even suturing of the various layers of tissue that need to be repaired. Worst of all however, he said that if this was done – as the guidelines for proper obstetric practice require – immediately following the delivery, she would most likely have made a full recovery and gone on to live a normal adult life. Instead she had been left with lifelong faecal incontinence, a disruption of every aspect of her life, work, social, family and sexual – all utterly avoidable but for the carelessness of an unsupervised junior doctor and the fecklessness of the senior doctor who was supposed to supervise him. Add to that was the apparent ‘blind eye’ turned on the obvious negligence by those doctors who examined her over the few years that followed.
I think quite rightly, our client asked us to sue the HSE on her behalf. The HSE don’t defend cases themselves – nor indeed do they pay the compensation or costs. All that falls to the State Claims Agency who are funded through our national pension fund. As I have often said here before, if the HSE had to bear the cost of such cases, they might pay a bit more attention to patient safety but as it is, they and the doctors they employ operate without consequence – in such a system how can we expect anything but a poor standard of care to be incubated!
We carried through with the High Court proceedings and of course with such a strong expert opinion, were successful. The case took about 18 months which is not unusual – people often talk about medical negligence cases taking 5 and 6 years but that is not the experience of our practice. Liability was denied initially by the State but before the case to to come to trial it was settled for approximately €250,000 plus all legal costs. As our practice doesn’t charge a fee from our client, she naturally received 100% of that money. I do not like to use the word ‘compensation’ because so rarely do I see awards of damages coming in any way close to compensating a person for the pain or loss of freedom or loss of enjoyment that such injuries bring. What is usually more important is the sense of proving that they committed a wrong and getting an acknowledgment of that – sometimes even getting them to make their system safer and better for other women.
This case had a lot of features that we see in the majority of perineal tear cases we work on – the lack of interest by doctors, the quick repair of the tear in the delivery room by someone other than a specially trained surgeon, the needless suffering and the long passage of time before our client came to us, well past the normal 2 year Statute of Limitations period and yet we were able to achieve an excellent outcome – at least in legal terms.