When a mother sustains a gynaecological injury during childbirth, often the first emotion is not one of joy at holding their newborn but instead dismay and disappointment about the care provided.

This is an area in which we at Catherine Henry Lawyers have seen the number of inquiries grow in recent years.

Some of the issues in this area are:

• Failure to identify and promptly repair third-degree tear occurring during delivery
• Negligent manner of repair of episiotomy and tear
• Vaginal birth – pelvic floor damage and need for surgical repair of third degree tears
• Australia having one of the highest rates of C-section in the world.

Perineal or Vaginal Tears

Perineal or vaginal tears can occur during childbirth as a result of the baby’s head passing through the mother’s birth canal or as a result of the use of instruments used to assist in the delivery. Often the trauma is not serious and can be identified and repaired without the risk of future complications.

Factors thought to increase the chance of significant tears during childbirth:

• Induction
• A first child
• Large baby
• Either faster than expected or protracted second stage of labour
• Instrument delivery
• Midline episiotomy
• Inappropriately angled medio-lateral episiotomy
• Shoulder dystocia.

Tears are classified according to definitions universally accepted by obstetricians and range from first-degree to fourth-degree tears. First-degree and second-degree tears are almost invariably easily identified and repaired without causing any undue difficulty for the mother. Third-degree and fourth-degree tears can be extremely severe and will require extensive suturing and follow up to prevent devastating symptoms developing. The issue of whether third-degree and fourth-degree tears, in particular, are preventable is one that is alive and robustly debated in the medico-legal arena.

Severe tears can sometimes be missed and left unrepaired, resulting in serious consequences for the mother. Women who have suffered from traumatic perineal tears are often reluctant to discuss their symptoms, believing that vaginal or anal sphincter injury is a necessary part of having a baby or they are simply too embarrassed by their symptoms that they suffer in silence. Symptoms can include perineal pain, incontinence of flatus (wind) and faeces, and painful sexual intercourse. For some women these symptoms can last for years and cause them suffering, pain and loss of dignity. It is vital that injuries to the perineum are correctly identified in the delivery room and that expert advice is sought by midwives and doctors attending deliveries.

How to bring a claim for negligence

Obstetric negligence is a complex area of law and one that may involve a number of different aspects of pregnancy and birth. One of the challenges in this area is proving that the inadequacies in management were the cause of the harm that occurred.

The first step is to establish if the hospital or doctor acted in a manner widely accepted as competent professional practice at the time the service was provided.

Second, it has to be proven that “but for” the departure from acceptable standards of care the injury would not have occurred and it is appropriate that the defendant be held liable for that injury The fact that injury has occurred of itself will not be sufficient to establish negligence. In most cases, establishing that the inadequate care was the cause of the tear will be the most difficult part.

As with any medical procedure these injuries can often be attributed to recognised complications rather than being the result of a negligently performed procedure. However certain injuries may have been avoidable if adequate care and attention was paid either during the initial procedure itself or in the immediate post-operative period.

How a tear is managed after it occurs is also an area that may give rise to a claim for negligence and Catherine Henry Lawyers have handled numerous cases for women who suffered ongoing problems as a result of what the expert opinion opined was inadequate repair, poorly conducted repair and/or inadequate post-repair care.

Failure to warn of the risk of gynaecological injury

It has long been understood that practitioners must take reasonable care to ensure that a patient is aware of any material risks involved in a proposed treatment, and of reasonable alternatives. A recent case in Scotland[1] raises issues about whether there is a duty on doctors to warn of the risks of injury associated with vaginal birth (where those risks are elevated and a Caesarean section is a viable alternative).

Often the comparative discussion about whether to have a vaginal birth or a Caesarean section centres around the delivery risks for baby and the delay in recovery for mother after Caesarean-section – there is usually no mention of the risk of potential gynaecological injuries during vaginal births presumably because those are relatively low. However, some births are more likely to result in injury than others and the mother in this case was one of those. She was at increased risk because not only was she of small stature but she also had diabetes, which increased the likelihood of a larger baby. Those factors combined put her baby at increased risk of shoulder dystocia, which eventuated during the stressful vaginal delivery, causing the baby to suffer a brachial plexus injury and cerebral palsy.

When considering the material risks that should have been disclosed, the Court looked at what risks a reasonable patient would regard as material, instead of the traditional approach by reference to what a reasonable doctor would consider a material risk requiring disclosure. On the facts, the evidence was undisputed that, had the mother been informed of the risk of shoulder dystocia, she would have elected to deliver by Caesarean section. As such, she was able to recover compensation for her obstetrician’s failure to warn about risks associated with the vaginal birth of a large infant.

How can we help?

Catherine Henry Lawyers has assisted many women to make successful claims resulting from injuries arising from traumatic childbirth experiences. In addition to gynaecological injuries, we have assisted women to make claims concerning the psychological impact associated with birth trauma.

If you are looking for information or help involving gynaecological injury during birth, we can help you navigate the process.

Our health law team is highly respected in the health and medical litigation arena, with specialist knowledge accumulated over 30 years.

Our team can assist you by providing expert advice and legal support regarding your options. Contact us today on (02) 4929 3995 or online.

*The material provided in our information sheets is for general knowledge only and is not a substitute for independent legal advice. For further information about the issues affecting you, please contact one of our experienced and professional lawyers for expert advice.

[1] Montgomery v Lanarkshire Health Board [2015] UKSC 11