Coroner's reports and expert witness

'Midwives and the medicolegal system'

·       [These are the notes I prepared for a talk given at MAMA Caulfield today.]

INTRODUCTION

My interest – 

§  a midwife in private practice 1992-2015.  Included many births that would be called ‘high risk’ today – grand multipara, births after caesareans, previous history of haemorrhage, undiagnosed twins and breech births.

§  Activism around the laws and regulations relevant to midwifery, particularly in the 1990s and 2000s.

§  Appointed to the (then) Nurses Board of Victoria. 

§  Ongoing, as a member of this society, a mother, grandmother &c, and a lifelong learner.  Reflecting on cases, and learning what happened, why, what could have been done differently, what would I do differently next time this happens

EXERCISE: Write down any phrases or sayings you can think of relevant to birth & midwifery (you don’t have to agree with them)

·       “Birth is not an illness”

·       “In normal birth there should be a valid reason to interfere with the natural process.”

·       “A midwife sits on her hands”

·       “Hands off the breech”

·       “My body, my baby, my birth”

·       “with woman”

·       “wise woman, sage femme”

·       Every woman needs a midwife

·       Choice, control, continuity of carer

LEARNING FROM CORONER’S REPORTS

A few links:

Death investigation process (Victoria) http://www.coronerscourt.vic.gov.au/home/coronial+investigation+process/death+investigation+process/

Unplanned homebirth, breech (Victoria)  http://www.coronerscourt.vic.gov.au/resources/1f82b8fb-5b72-453f-a10c-b7d1890dcb07/marthaalicefraser_229111.pdf

Hospital birth http://www.coronerscourt.vic.gov.au/resources/39069919-7183-4019-b5c4-fd3b5368ba68/babykyliehamilton_348109.pdf

Planned homebirths in NSW*

http://www.austlii.edu.au/au/cases/nsw/NSWCATOD/2016/105.html

Home/freebirth in NSW http://www.coroners.justice.nsw.gov.au/Documents/babyNA2.pdf

*Note the finding that "Characterising these homebirths as a patient’s choice misrepresents the patient’s knowledge base in making that (uninformed, or not sufficiently informed) decision, and misunderstands the role of the professional in explaining risk and recommending safe practice"

Facebook site ‘Childbirth and the Law – Australia’ – “...This group is for discussing developments in the law about pregnancy and childbirth in Australia. It is not a forum for soliciting or giving legal advice or legal information.”

CASE STUDIES

Examples of cases for which I have provided expert witness review on behalf of the legal team for one of the parties to litigation.

CASE 1:

Baby developed cerebral palsy, and was suing the hospital.  Baby was born in hospital, vaginal birth after induction of labour at 38 weeks.  At about 3 hours after birth the mother discovered that her baby had become floppy and was not breathing.  Immediate resuscitation attempts and transfer to SCN, and appeared to recover well.

Opinion:
“Following your consideration of the material,:
(1) Please provide your opinion as to whether the midwives at [Hospital], in their treatment and management of the plaintiff , acted in a manner that was widely accepted in Australia by a significant number of respected midwives, as competent professional practice in the circumstances.
(2) If you are of the opinion that the midwives at [H] acted in a manner that was widely accepted in Australia as competent professional practice, please outline the basis of your opinion the practice was ‘widely accepted’.  Please note that as a matter of law, peer professional opinion does not have to be universally accepted to be considered widely accepted.
(3) Please provide your opinion on each of the allegations of negligence made against [H] in paragraph (xx) of the Statement of Claims.

CASE 2:

Baby developed cerebral palsy after VBAC complicated by shoulder dystocia. Parents had begun proceedings against private midwife who was primary carer for planned homebirth, transferred in second stage to hospital. 

Based on the facts outlined in this case, I was asked whether I consider that:
(a)        M’s [Midwife’s] management of W’s [Woman’s] pregnancy and labour was in accordance with what would be widely accepted by peer opinion as competent professional practice.

(b)        it was appropriate for M to agree to manage the labour as a home birth.

(c)        M should have transferred W to hospital earlier.  If so, when and on the basis of what signs of symptoms?

(d)        there were any indications prior to x:xx pm (the time of birth) of possible shoulder dystocia or an increased risk of shoulder dystocia.

CASE 3:

Medical negligence claim in which the doctor [D] disputes key aspects of the records made by the hospital midwives [M] at the time of birth of baby [B] who was delivered by Ventouse extraction, had Apgar scores of 1 at 1min and 3 at 5min, and developed cerebral palsy.  B has commenced a claim against Doctor D and the hospital.

My report addressed the following questions:

1.     In relation to the actions of the hospital staff, we ask you to examine the partogram and the other records made by the nursing staff and comment on their adequacy,

2.     We note the plaintiff pleads in paragraph [x] of the Statement of Claim that between 03:00 and 06:00 hours there was a reduction in the variability of the foetal heart rate.  In your opinion, should the midwives have contacted Dr [D] prior to his attendance at 06:30 hours?

3.     We note the hospital staff recorded “B.S.” (we assume this means blood-stained liquor) at 03:00 hours and “mec” (we assume this means meconium) at 03:30 hours, and “B.S.” and “mec” at 04:30 /05:00 hours.  Should the midwives have contacted Dr [D] and informed him of these developments?

4.     Any other comments you wish to make on the midwives’ management.

5.     We would be grateful if you could please confine your comments to the midwives’ management.  An obstetric expert will provide a view on Dr [D]’s management.

WATCH OUT!

• 1.     Mother’s rights vs baby’s (fetal) rights “my body, my baby, my birth”. Decision-making (not ‘choice’) Informed refusal, uninformed, or not sufficiently informed decision.
• 2.     Communication and social media – huge change in past decade.  What’s in store?
• 3.     True believer – ‘choice’, ‘control’, informed consent, non-intervention, natural, even ‘breast is best’
• 4.     What it means to the midwife to plan for homebirth.
• 5.     Lack of respect for the amazing processes of pregnancy, birth and nurture of the baby

CONCLUSION

Although birth is not an illness, the process carries potential for damage and death.  In birth there is a finite point after which the baby (or mother) will not do well, but it's impossible to predict where that point is.  Midwives accept and embrace this uncertainty, as we work in harmony with natural physiological processes which usually lead to spontaneous birth, or alternately as we intervene and interrupt that natural process.