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Obstetric malpractice: an update

Obstetric Malpractice: An Update

Elective caesarians versus vaginal delivery and guidelines for home births were among the fascinating legal issues covered at the Obstetrics Malpractice Conference held recently in Melbourne, writes senior associate Belinda Epstein.

The annual Obstetric Malpractice Conference is attended by obstetricians, midwives, peak body representatives, insurers and lawyers and it’s an excellent opportunity to dissect and keep abreast of legislation, case law and medical case studies from a variety of professional perspectives. Here are some of the highlights for me from this year’s conference.

Elective caesarian versus vaginal delivery

Professor Michael Permezel, President of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists, talked about the latest statistics regarding outcomes of elective caesarean section versus vaginal delivery.

In particular, Dr Permezel focused on the Morcambe Bay report from the United Kingdom, which investigated the deaths of one mother and 11 babies in a particular hospital between 2004 and 2013. The report found midwives at the hospital were extremely cavalier and work in the maternity unit was seriously dysfunctional with poor levels of clinical competence, extremely poor working relationships and a determination among midwives to pursue normal childbirth “at any cost”.

Somewhat controversially, perhaps, Dr Permezel also espoused the view that allowing a woman to go beyond 40 weeks of pregnancy at 40 years of age or above is “straight out negligence”.

Transfer guidelines for home birth

There were fascinating talks on transfer guidelines for home births, as well as the concepts behind information, advice and warnings for women wanting to undergo home birthing in the various jurisdictions in Australia. The conference heard from both a midwifery perspective (Professor Caroline Homer, Professor of Midwifery, University of Technology Sydney and President, Australian College of Midwives) and legal perspective (Bill Madden, medical lawyer, and Associate Professor Tina Coburn, Queensland University of Technology Faculty of Law).

Home birth is still a relatively unpopular form of birth in Australia. However, as Professor Homer noted, it is not going to go away and is very important that the medical profession and public health system continue to develop clear, helpful guidelines. This is especially the case in relation to informed decision making.

Interestingly, only two days after the conference, the NSW Civil and Administrative Tribunal (Occupational Division) handed down its decision in the case of an interim disciplinary proceeding against a midwife following two home births in New South Wales (HCCC v Sheldrick). The decision relates to the neonatal deaths of two babies delivered by the midwife on the Mid North Coast of New South Wales.  In both cases, women were transferred to hospital late in their labour and delivered stillborn babies due to birth complications.   Previous conditions had been imposed on Ms Sheldrick’s registration and she had not in fact practiced as a midwife since August 2014.  Findings of both unprofessional conduct and professional misconduct were established against Ms Sheldrick, with a further hearing to be held regarding the protective orders to be made by the Tribunal.

Neonatal resuscitation

There was an alarming discussion by Associate Professor Ted Weaver (University of Queensland) regarding risk assessment in obstetrics and training in neonatal resuscitation. He pointed out that while only approximately five per cent of births will progress to be difficult, it is hard to know which five per cent this will be. In other words, it is difficult to anticipate before a baby is born that it may need resuscitation. Dr Weaver expressed the view that a neonatal paediatrician should be readily accessible for all births.

Foetal Medicine

The conference heard a fascinating update from Dr Stephen Cole, obstetrician and gynaecologist at the Royal Women’s Hospital in Melbourne. Dr Cole is a specialist in maternal foetal medicine and spoke about the fascinating recent and continuing developments in the area of foetal medicine, particularly in the area of foetal surgery.

Dr Cole emphasised the need in these complex cases to balance the risks to the mother with the risks to the baby.

Protecting unborn or newborn babies from domestic violence

There was a panel discussion on domestic violence and child protection notifications in respect of a woman and her unborn child. Dr Kathleen Baird, Director of Midwifery and Nursing Education, and Louise Everett, Clinical Midwifery Consultant, spoke together about the extremely tangled moral, ethical and legal issues surrounding a caregiver’s duty of care to an unborn or newborn child. It was noted there are no mandatory reporting requirements regarding an unborn child. However there are guidelines that differ between jurisdictions.

Performance management of clinicians

The delicate issue of performance management of clinicians, as well as the practice of clinicians investigating complaints and clinical failings of peers, were tackled by Dr Nicola Yuen, Director of Obstetrics and Gynaecology at Bendigo Health in Victoria. She noted that in many instances, clinicians are not trained to do these things and therefore the systems often fail. Dr Yuen told the conference that in order to bring about improvements in this area it is necessary to: change the hospital culture, engage in robust clinical governance and learn from mistakes. To achieve this, the barriers to reporting need to be removed, for instance training and personality issues.

Multi-disciplinary conferences like the Obstetrics Malpractice event are highly beneficial for health law practitioners and all the attendees I spoke to felt that the issues discussed had enlightened and enriched their professional working lives. I was certainly no exception.

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