Gluckstein's Jan Marin on the silent crisis and its link to medical malpractice
This article was produced in partnership with Gluckstein Lawyers
Every year in North America, hundreds of women die during pregnancy or in the postpartum period. An international report by the World Health Organization (WHO) estimates that out of every 100,000 births in 2021, 19 American women and 10 Canadian women died within the scope of the WHO’s definition which is “while pregnant or within 42 days of termination of pregnancy, irrespective of the duration and the site of the pregnancy, from any cause related to or aggravated by the pregnancy or its management, but not from accidental or incidental causes.” And according to experts, the vast majority of these maternal deaths are preventable.
Jan Marin, senior associate at Gluckstein Lawyers, has worked on many maternal death cases — and has three in progress right now — she knows firsthand that many of the outcomes would have been different had more robust guidelines been in place.
“If hospitals have the right policies and if doctors and nurses receive the right training, these deaths are almost always preventable,” Marin says. “Unexpected emergencies, such as an amniotic fluid embolism, which is very difficult to treat, are exceedingly rare. Most of the time we’re talking about infectious or hemorrhagic deaths which are preventable.”
Postpartum and antepartum women have physiological differences from the general population but outside of major birth centres, hospitals often rely on guidelines and policies that are meant for the general population. For example, some blood values change when a woman is pregnant or postpartum. For example, there is a protein in the blood called fibrinogen that is involved in forming blood clots in the body. For the average adult, normal fibrinogen is 2 – 4 grams per litre. A reading of less than 1 may be suggestive of active bleeding. In pregnant people, Fibrinogen levels are higher, and average between 4-6. In pregnant people, the threshold to consider postpartum hemorrhage must be higher. Levels less than 2 should raise concern. “This is an easy fix in hospital guidelines. It is something I have seen multiple times. Generic guidelines cannot always be used for the peripartum population.” Marin notes.
Early recognition of bleeding is important — the physician has time to figure out where it’s coming from, replace the blood loss, and control the bleeding— but when the bleeding is out of control or continues for too long Disseminated Intravascular Coagulopathy (“DIC”) can set in and it’s very difficult to come back from that.
“Each time I go to my hematology experts with a maternal hemorrhage fatality case, they say to me, this shouldn’t have happened,” Marin says, what’s more “unfortunately, the BIPOC community is at higher risk” and while much of the literature on racial bias in health care is US-based, Canada is not immune.
Some doctors report it’s more difficult to evaluate blood loss when a patient has darker skin because colour changes are not as readily apparent. But according to Marin this cannot be an excuse “there are other ways to evaluate these things, such as checking vital signs, ordering a CBC, or performing a bed-side point-of-care hemoglobin check.”
“It is also something that healthcare providers treating diverse populations should be aware of. The cannot rely upon skin colour changes in their assessments” Marin says. “In these cases, it never comes down to one indication alone: most of the time there are many signs. We have never had a case where that excuse holds any weight.”
The urgency to identify the issue also applies to maternal infections — in the last five years, for example, there have been multiple maternal deaths in Toronto from Streptococcus A infections, which are particularly dangerous to peripartum patients.
“Ignoring early warning signs, and failures of communication among multi-member healthcare teams are two critical issues that we see in these cases,” Marin says. In another of her cases, the coroner’s report pointed to the UK as a global leader in early identification and management of maternal conditions and said that had a similar early identification system been used, the maternal death would have likely been avoided — a difficult thing to hear. While some provinces, including Saskatchewan, have made moves to implement more robust early warning systems much of the rest of Canada has lagged behind.
“We don’t expect or want to hear that Canada is behind other Western nations; we expect good health care. As a mom myself, when I delivered my children, I didn’t anticipate receiving a lower standard of care than what’s provided in other countries. That’s distressing. There is no reason Canada shouldn’t have had an early warning system in place as early as the UK.”
In the UK Maternal deaths are tracked and investigated by the MBRRACE monitoring program and have been since 1952. The law requires any maternal death to be reported to a dedicated team, and results from the confidential investigations are distributed widely. If a woman dies in her childbearing years, it’s automatically checked if she’s given birth in the last year.
In contrast, Canada has no such comprehensive program. The national maternal death count is calculated from death certificates that aren’t always properly flagged as either a death of a pregnant or postpartum woman, leading to what experts believe is a significant undercount of maternal deaths. Further what counts as a maternal death differs across the country, with some provinces using the WHO’s definition, others considering a year after birth, and some not counting the postpartum period at all.
Six provinces have mandated maternal death reviews including Ontario. In 1994 it established through the Office of the Chief Coroner (OCC) the Maternal and Perinatal Death Review Committee (MPDRC). According to its annual report:
The purpose of the MPDRC is to assist the OCC in the investigation, review and development of recommendations directed towards the prevention of future similar deaths relating to all maternal deaths regardless of cause. This includes all deaths during pregnancy and the post-natal period (which is considered to be up to 42 days after delivery). Any deaths after 42 days and up to 365 days post-delivery are reviewed if the cause of death is directly related to the pregnancy or a complication of the pregnancy.
While the mandate is clear, Marin knows from experience it’s not always followed.
“I can tell you that not all of my cases were reviewed, so not all maternal deaths are being referred,” she says. “That is unacceptable. We cannot expect change if the organization responsible for pushing that change forward is not aware of all the deaths — it's incredibly problematic.”
Some doctors and hospitals argue that with medical malpractice, the suggestion of increased testing may prevent bad outcomes for a small minority of patients, but the majority will be subject to unnecessary procedures and longer hospital stays. But it’s not about making the system obtrusive and it’s not about shaming health care professionals, Marin stresses, it’s about making changes to address a particularly tragic scenario.
Pregnant women are one of the only patient populations that come to the hospital completely healthy, unlike most medical malpractice cases where someone sought medical care because they have cancer, another health issue, or require surgery. Those can be very difficult cases because it must be determined what pieces of the outcome are related to an underlying condition and what is related to substandard medical care. But for pregnant women, the majority of whom are in the prime of their life and health between the ages of 20-45, are not patients you would expect to die.
“The fact is, if we can learn from past peripartum deaths, patient care will improve dramatically and future deaths will be prevented,” Marin says. “There are lessons to be learned in this particular area of medicine, where almost all of the terrible outcomes are preventable. These are healthy young patients, and it should shock anyone to know that maternal deaths are still happening in this day and age.”
“In my experience, the trauma that families suffer as a result of this kind of unexpected loss can make it difficult to think about reaching out to a lawyer, but sadly they are subject to a more rigid limitation date,’’ Marin adds. The Trustee Act applies to these cases, meaning that a malpractice case must be brought within two years of the death.
Ultimately, having a baby is a happy time and the last thing families are thinking about is the danger that might be awaiting a pregnancy person. These cases impact Marin deeply, and as a medical malpractice lawyer who is skilled in the area, she urges anybody who has lost a loved one in this way to reach out for legal advice sooner rather than later.
