Personal injury lawyer says fetal monitoring guideline is too focused on medico-legal considerations

Richard Halpern, a senior lawyer at Gluckstein Lawyers in Toronto, has criticized the 2020 Clinical Practice Guideline No. 396 issued by the Society of Obstetricians and Gynecologists of Canada for focusing too much on preventing lawsuits.

“Improved outcomes are the best defence to medical malpractice claims, while defensive guidelines work against this goal,” wrote Halpern in an article for LegalMattersCanada.ca criticizing the comprehensive guideline, which was updated last March.

The guideline aims to assist the health profession, including obstetricians, gynecologists, family physicians, nurses and midwives, in surveying the health of babies throughout the labour and delivery process, which involves monitoring the fetal heart rate, an indicator of how effectively the babies are dealing with labour stress and whether the babies are adequately oxygenated.

Halpern suggested that instead of unduly emphasizing medico-legal considerations, the guideline should pay more attention to reliable data which will lead to better outcomes for babies, with fewer babies being born with injuries.

Halpern lamented that the 2020 update did not improve upon the decade-old guideline, which was also updated in 2007. For instance, the 2007 update seeks to “decrease” the incidence of birth asphyxia, while the 2020 update merely aims to “minimize” these risks.

Halpern said that the health profession may benefit from a fuller understanding of how and when birth asphyxia happens so that it may reduce such cases and develop more informed and useful guidelines. While birth asphyxia is a relatively rare condition, it impacts families and the legal and medical systems, Halpern stated.

Halpern then said that the guideline relied on dated studies instead of more current data. “The continued endorsement of [intermittent auscultation (IA)] over [electronic fetal monitoring (EFM)] in low-risk deliveries, which support is based on old research of dubious value in modern obstetrics, is unwarranted in my view,” Halpern wrote in the article.

Moreover, the guideline failed to reflect recent understanding on causation in relation to the injuries suffered by babies and did not mention neuroimaging, a recognized method to determine the cause and timing of an injury. “Neuroimaging, which involves a head ultrasound, CT scan and a MRI, can tell us within a window of weeks and sometimes hours when the baby was hurt,” wrote Halpern in the article.

Halpern said that he hoped that airing these concerns would spark dialogue, which would in turn lead to the development of better guidelines. “While the obstetrical community disagrees with what I have to say, these are important issues that should be raised, for the benefit of the children,” Halpern wrote in the article.