Guidelines may be incomplete, insufficient or misguided and shouldn't be taken at face value
This article was provided by Gluckstein Lawyers
Professional medical organizations, like the Society of Obstetricians and Gynecologists of Canada (SOGC), issue guidelines from time to time intended to instruct nurses and physicians on the standards of care relating to women’s health. In medical malpractice cases arising out of birth trauma, the focus is primarily on guidelines relating to antepartum (before labour) and intrapartum (during labour) care. The impact of these guidelines on legal liability is the focus of this article.
As one would reasonably expect, there is a link to be made between guidelines issued by reputable professional organizations and standards of care determined by courts in malpractice cases. In some cases, as I hope to illustrate here, guidelines may be incomplete. In other cases, guidelines might be insufficient or misguided. Lawyers acting for affected patients must be careful not to take all guidelines at face value. Whether professional guidelines are accepted as the legal standard of care will always depend on the evidence.
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A defendant in a medical malpractice case who failed to follow a professional guideline may argue that “it is only a guideline” and that “clinical judgment” is involved in the use of a guideline in practice. In response, the plaintiff may need to establish why the guideline was formulated, how it relates to the care of the patient, and its importance to patient safety or well-being.
A different defendant may assert that compliance with a professional guideline is evidence of having met the legal standard of care. In response, the plaintiff may wish to demonstrate that the guideline was deficient or that the guideline was flawed in the circumstances of the case.
Guideline no. 382 from the SOGC on Trial of Labour After Caesarean helps illustrate the point. This guideline recommends a trial of labour for women who have previously delivered by caesarean section in certain defined scenarios. One objective of the guideline is to reduce the caesarean section rate and maternal complications associated with those procedures. The risk of labour following a previous delivery by caesarean section is that the scar on the uterus from the earlier surgery can rupture, creating a dire emergency.
While uterine rupture in a trial of labour after caesarean section is rare, it is higher than the risk in vaginal births for women without a uterine scar. Further, where labour is induced (started with medication prior to spontaneous onset of labour) or augmented (labour promoted with medication after it has begun), the risk of uterine rupture is increased.
Uterine rupture creates risk for both mother and baby. Regarding the health of the baby, where uterine rupture occurs, there is little time to intervene before the baby suffers brain injury or is even stillborn. The problem with the guideline is its treatment of the time to delivery following uterine rupture and the prior informed consent that takes place between the women and her obstetrical care provider. Unless delivery is achieved very quickly following uterine rupture, injury or death of the baby will be unavoidable.
Guideline 382 refers to a “widely accepted standard of timely” emergency caesarean section as one initiated within 30 minutes. It asserts that this standard is “reasonable,” yet acknowledges that it “may not prevent serious neonatal morbidity or mortality.” Even rescuing the fetus in less than 18 minutes may not prevent serious complications or death. Some believe that a response in 12 to 15 minutes is more prudent.
Arguably, a standard of delivering within 30 minutes is unacceptable in a trial of labour after caesarean section when brain injury may occur in as little as 12 minutes. It is also important to know what clinical circumstances trigger the caesarean section decision time. In my view, this guideline is deficient in establishing an acceptable process of informed consent to trials of labour after caesarean section. I suggest that a properly informed women would not agree to a trial of labour where rescue of the fetus cannot be assured before the onset of brain injury. Why take the risk? Most women, it is suggested, would prefer the maternal health risk of repeat caesarean section, which is low in absolute terms, than the risk of fetal brain damage or death. It is a flawed guideline.
Richard Halpern is a senior lawyer acting exclusively for injured people in medical negligence cases, with a special focus on infants injured at or around the time of birth. Richard is known across Canada for his expertise in birth injury cases. He has more than 30 years of experience representing seriously injured people.
