Many women who sustain a gynaecological injury in childbirth feel disappointed and sceptical of the care that they were provided and it is an area in which CHL has seen an increasing number of inquiries in recent years.
There has been significant media attention and debate in recent years around the increasing caesarean section rate in Australia and abroad. A recent article in the Sydney Morning Herald (11 September 2013) added to that discussion. In the article Dr Dietz suggested that the increasing caesarean section rate is entirely appropriate given the changing demographics of women birthing in Australia today. He also went on to state that pressures on women to birth naturally and forego caesarean section may be contributing to greater rates of pelvic floor damage and ongoing problems for women, especially later in life.
Health Statistics NSW reports that in 2010, 5% of women delivering vaginally required surgical repair of a 3 degree tear and 0.4% required surgical repair of a 4 degree tear[i] There are certain factors that the literature suggests increase the risk of significant tear during childbirth. Such factors include a first child, large baby, faster than expected second stage of labour or conversely a protracted second stage of labour, instrumental delivery and midline episiotomy or inappropriately angled medio-lateral episiotomy.
At the 5th Annual Obstetric Negligence Conference in Melbourne earlier this year, Dr Andrew Bisets, Obstetrician at the Royal Women’s Hospital at Randwick presented a paper on perineal trauma. He indicated that the RWH between 2008 and 2012 there had been a slight decrease in the caesarean section rate whilst there was a slight increase in the rate of instrumental deliveries. There was no significant trend indentified in the rates of major perineal trauma overall. However, there was an increased number of 4 degree tears in 2012 which caused them to review their practice and procedure and consider whether there was any evidence to suggest 3 and 4 degree tears could be prevented.
The issue of whether third and fourth degree tears, in particular, are preventable is one that is alive and robustly debated in the medico-legal arena.
Of course, whether or not a claim for negligence will be sustainable will depend firstly on whether the hospital or doctor concerned acted in a manner that at the time the service was provided was widely accepted as competent professional practice. But it will also require the plaintiff to prove 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.
Thus, the very fact that injury has occurred will not be sufficient to establish negligence. Neither will it be sufficient to show that the injury occurred in circumstances where the care provided was inadequate. In most cases, establishing that the inadequate care was the cause of the tear will be the most difficult part.
How a tear is managed after it occurs is also an area that may give rise to a claim for negligence and CHL 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.
We are not aware of any cases having been run to date on the issue of informed consent. However, Dr Dietz’s comments raise the question as whether there may be scope to argue a failure to warn claim for a women who is not appraised of the risk of gynaecological injury associated with vaginal birth, at least in circumstances where a choice between caesarean section and vaginal birth is clinically appropriate. Anecdotally at least the conversations undertaken generally focus on the comparative risks of the delivery mode for the baby and the recovery period associated with caesarean section. Perhaps a prudent obstetrician need also be discussing (if they aren’t already) the potential risks of gynaecological injury associated with vaginal birth.
