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Trends in obstetric malpractice claims
931
Medicine and the Law Trends in obstetric malpractice claims Obstetric claims now account for the largest individual awards in medical malpractice litigation in the UK.
Attempts have been made to identify the causes of obstetric accidents,l but doctors and managers have received little measures that can be taken to The purpose of our study was to identify trends in obstetric malpractice claims brought against health authorities and find out whether the experience of past claims suggested any fruitful direction for quality assurance or risk management programmes. We also examined specific issues giving rise to litigation, hoping to identify the means by which claims may be more systematically defended.
guidance
on
the
minimise their
practical
cost.
Fig 1 -Obstetric claims outcomes.
Subjects and methods We reviewed all the obstetric incidents notified to ten district health authorities for whom we acted during the period from January, 1983, to June, 1990, amounting to 100 claims in all. Incidents were regarded as notified when health authorities or their solicitors received notification of allegations of malpractice. Using a database developed during the relevant period (DATIX Medical Claims Management System, Datix Business Systems Ltd), we collected data on the dates of incidence, notification, and conclusion and the financial consequences in terms of damages and both parties’ legal costs. In addition, the allegations were identified from letters of claim and legal documents.
Results 100 cases arose in the period of the survey, an average of 13 a year (see table). This means that there was about a 1 in 2500 chance of a legal challenge ensuing from a birth. The numbers varied little
(range 10-15 per annum) until 1990, when a change in the legal aid rules led to a surge of claims. We calculated the interval between the date on which an untoward obstetric incident occurred (usually the date of birth) and the date on which the health authority was notified of the possibility of a claim. Figures for the 49 brain damage cases are shown in brackets. The average delay was 1277 (1981) days, with the first quartile being 194 (377) days and the fourth quartile 1449 (2633)
days. The average life of a claim was considered by looking at the time elapsed between date of incident and the date on which either all payments had been made by the health authority in respect of damages and costs or the authority’s legal advisers had regarded the claim as stale. The average duration of claims concluded during the relevant period was 6-7 years, although the average for those cases in which a payment was made was much higher. The progress of claims at the expiry of each successive 12-month penod after the date of notification was examined, and the
sharp fall-off during the first 3 years (fig 1).
In this period, 38% of claims will be concluded without payment, but 57% of claims are still proceeding after 4 years. We considered the arguments put forward by medical experts instructed by claimants in support of their claims and the responses of experts instructed by health authorities. The more common groups of findings are illustrated by fig 2. Allegations concerning meconium staining and inadequate fetal heart monitoring invariably assert that signs of distress were not noticed early enough or that, if they were noticed, appropriate action was not taken soon enough. These allegations were often connected with further allegations that a difficult labour was unnecessarily prolonged, all of which constitute medicolegal pressure for intervention at the early signs of distress.
Discussion
Despite predictions of an increase in the number of claims, the number remained relatively constant throughout the period until 1990, when there has been a dramatic surge in the number of claims. However, various factors appear likely to increase the number of cases that will be pursued in future. First, improvements in the care of newborn infants will increase the survival chances of damaged infants and therefore the number of prospective plaintiffs. Secondly, a change made in April, 1990, to the legal aid rules, whereby infant plaintiffs will be assessed on their own means rather than their parents’ means, will greatly increase the number eligible for state funding of claims. There were 26 claims between April and October, 1990, but the full impact is likely to emerge only during the next two to three years.
cumulative outcomes in years 0 to 4 were recorded for claims that had been running for at least that length of time. The results show a
INCIDENCE OF CLAIMS
Fig 2-Common allegations.
932
A further influence
on
the number of claims is the
increasing
Obituary
expertise of solicitors acting for plaintiffs, which is likely to reduce the very high proportion of claims that are abandoned or pursued
indifferently. Conversely,
Edward
factors that tend to reduce the number or cost of claims that would otherwise be pursued or pursued successfully include improvements in the understanding (at least by lawyers) of the tenuous causal link between obstetric incidents and brain damage detected at birth, the implementation of risk management measures such as those that we recommend below, and the more systematic analysis and defence of claims. The more common allegations made in the claims studied were indicative of individual human error or the occasional breakdown of procedure and did not point to a generally substandard level of obstetric care beyond the circumstances of each individual case. The frequency with which similar allegations appear in claims invites further study by obstetricians of a sample of claims to see how often risks were identified at the time and whether the risks identified were properly managed. In general, the character and frequency of the claims in our study led us to conclude that risk management programmes designed to reduce the expense of claims should be directed towards the improvement of methods for handling incidents rather than their prevention. Although every effort should be made to avoid accidents, we doubt whether the number of incidents of the type analysed would be substantially reduced by prophylactic measures. The most obvious area where the handling of untoward obstetric incidents or outcomes could be radically improved is the interval between the date of the incident (ie, date of birth) and the date that the hospital discovers there is to be a claim. Defendant hospitals are seriously prejudiced by such delays, since a claim will become more difficult to defend if the hospital is not aware of its existence for a number of years. Members of staff will become more difficult to trace, memories will fade, and tests that might suggest some alternative cause of the injury become more difficult to evaluate. The duration of claims once begun is a further cause for concern. A major cause of the lengthy duration of claims is the delay that we identified in bringing them in the first place, which greatly adds to the time and expense required to conduct an investigation into what occurred many years earlier. The fact that over half the claims are still proceeding 5 years after they have begun is likely to have a damaging effect on the morale of both doctors and patients. It is also unsatisfactory for health service managers who have to handle claims and budget for them.
Sir Edward Wayne, formerly regius professor of medicine at Glasgow, who was a pioneer in the use of radioiodine in the diagnosis and treatment of thyroid disease and also known for the Wayne diagnostic index, died on Aug 19, aged 88.
cases.
J. B. Capstick P. J. Edwards review of 64 cases. Br Med
Wayne
Lord
programmes aimed at reducing the cost of claims should be directed at improving procedures for dealing with the incidents that do occur rather than on preventive measures, however desirable the latter may be for other reasons. We recommend that doctors and managers instigate procedures for prompt reporting of untoward occurrences or adverse obstetric outcomes and that they devise protocols for investigating the cause of injuries present at birth. We also recommend that the limitation rules in cases involving a brain-damaged plaintiff be reviewed. The present law permits an indefinite delay in bringing a claim, even where those responsible for the injured plaintiff are well aware that a claim could be brought. We can see little justification for this privilege. We believe that the usual limitation period of 3 years from the date when those bringing the claim became aware, or should have become aware, of a possible cause of action should be applied in these
a
would have agreed with another Glasgow Kelvin, that "the life and soul of science is its professor, practical application". Wayne was one of a new group of professors of medicine-clinical scientific professors-many of whom had trained with Sir Thomas Lewis at University College Hospital Medical School. He had obtained a degree in chemistry at Leeds before doing medicine. He went to Lewis’s department in 1931 before returning to Yorkshire as professor of pharmacology and therapeutics at Sheffield University at the age of 32, where during his 20 years + there the department’s teaching and research reputation flourished. While running the university department he also served as paediatrician and consultant physician. From Sheffield he moved to take up the regius chair of Medicine m Glasgow, where he created a department with excellent research facilities, was particularly successful at selecting staff who could make proper use of these excellent facilities, and set the highest standards of patient care and teaching. Naturally, Sir Edward’s opinion was much sought after. He was at various times a member of the Medical Research Council, chairman of the Clinical Research Board, chairman of the Bntish Pharmacopoeia Commission, and chairman of the Advisory Committee on Drug Dependence. He was also chairman of the British Medical Association committee on alcohol and road accidents which recommended that the legal limit should be 80 mg of alcohol per 100 ml blood. He was the first clinical professor m Scotland to appoint senior physicists and biochemists to a medical department, a move that allowed him to further his studies on radioiodine and thyroid disease, and to make quantitative studies of iodine metabolism of a kind and accuracy not previously possible. He was also the first to apply the Bayesian approach to the analysis and practical use of clinical information in collaboration with James Crooks and Richard Robb: in fact his department was at the leading edge in the whole statistical treatment of data. The information produced assisted teams in the department to make highly original and innovative studies on haemoglobin synthesis, osteoporosis, and medical education and teaching methods. Donald Alexander
Edward
Conclusions and recommendations We conclude that health service risk management
1. Ennis M, Vincent CA. Obstetric accidents: 1990; 300: 1365-67.
Wayne
J
A memorial service for Mr Leslie Oliver will be held Nov 1, in the chapel at Charing Cross Hospital.
at
5 pm on
Thursday
Noticeboard Approved
names
Officially introduced on Sept 1 were the British approved names for two veterinary growth-hormone analogues, porcine L-alanylsomatotropin and L-alanyl-des-(32-38)-somatotropin, to be known as somalopor and somenopor, respectively. Also among nineteen new approved names are: the radioprotective agent, amifosooe, sobamast, a histamine H, -receptor agonist, and noberastine. an antagonist to the same receptor; and ridogrel, a thromboxane synthetase inhibitor. Also just published is the cumulative booklet. up to but not including the above supplement. 1. British
HM
Pharmacopoeia Commission 1990. British approved names Stationery Office. 1990. Pp 233 £16 ISBN 0-113212011
1990 London:
Medicine and the Law Trends in obstetric malpractice claims Obstetric claims now account for the largest individual awards in medical malpractice litigation in the UK.
Attempts have been made to identify the causes of obstetric accidents,l but doctors and managers have received little measures that can be taken to The purpose of our study was to identify trends in obstetric malpractice claims brought against health authorities and find out whether the experience of past claims suggested any fruitful direction for quality assurance or risk management programmes. We also examined specific issues giving rise to litigation, hoping to identify the means by which claims may be more systematically defended.
guidance
on
the
minimise their
practical
cost.
Fig 1 -Obstetric claims outcomes.
Subjects and methods We reviewed all the obstetric incidents notified to ten district health authorities for whom we acted during the period from January, 1983, to June, 1990, amounting to 100 claims in all. Incidents were regarded as notified when health authorities or their solicitors received notification of allegations of malpractice. Using a database developed during the relevant period (DATIX Medical Claims Management System, Datix Business Systems Ltd), we collected data on the dates of incidence, notification, and conclusion and the financial consequences in terms of damages and both parties’ legal costs. In addition, the allegations were identified from letters of claim and legal documents.
Results 100 cases arose in the period of the survey, an average of 13 a year (see table). This means that there was about a 1 in 2500 chance of a legal challenge ensuing from a birth. The numbers varied little
(range 10-15 per annum) until 1990, when a change in the legal aid rules led to a surge of claims. We calculated the interval between the date on which an untoward obstetric incident occurred (usually the date of birth) and the date on which the health authority was notified of the possibility of a claim. Figures for the 49 brain damage cases are shown in brackets. The average delay was 1277 (1981) days, with the first quartile being 194 (377) days and the fourth quartile 1449 (2633)
days. The average life of a claim was considered by looking at the time elapsed between date of incident and the date on which either all payments had been made by the health authority in respect of damages and costs or the authority’s legal advisers had regarded the claim as stale. The average duration of claims concluded during the relevant period was 6-7 years, although the average for those cases in which a payment was made was much higher. The progress of claims at the expiry of each successive 12-month penod after the date of notification was examined, and the
sharp fall-off during the first 3 years (fig 1).
In this period, 38% of claims will be concluded without payment, but 57% of claims are still proceeding after 4 years. We considered the arguments put forward by medical experts instructed by claimants in support of their claims and the responses of experts instructed by health authorities. The more common groups of findings are illustrated by fig 2. Allegations concerning meconium staining and inadequate fetal heart monitoring invariably assert that signs of distress were not noticed early enough or that, if they were noticed, appropriate action was not taken soon enough. These allegations were often connected with further allegations that a difficult labour was unnecessarily prolonged, all of which constitute medicolegal pressure for intervention at the early signs of distress.
Discussion
Despite predictions of an increase in the number of claims, the number remained relatively constant throughout the period until 1990, when there has been a dramatic surge in the number of claims. However, various factors appear likely to increase the number of cases that will be pursued in future. First, improvements in the care of newborn infants will increase the survival chances of damaged infants and therefore the number of prospective plaintiffs. Secondly, a change made in April, 1990, to the legal aid rules, whereby infant plaintiffs will be assessed on their own means rather than their parents’ means, will greatly increase the number eligible for state funding of claims. There were 26 claims between April and October, 1990, but the full impact is likely to emerge only during the next two to three years.
cumulative outcomes in years 0 to 4 were recorded for claims that had been running for at least that length of time. The results show a
INCIDENCE OF CLAIMS
Fig 2-Common allegations.
932
A further influence
on
the number of claims is the
increasing
Obituary
expertise of solicitors acting for plaintiffs, which is likely to reduce the very high proportion of claims that are abandoned or pursued
indifferently. Conversely,
Edward
factors that tend to reduce the number or cost of claims that would otherwise be pursued or pursued successfully include improvements in the understanding (at least by lawyers) of the tenuous causal link between obstetric incidents and brain damage detected at birth, the implementation of risk management measures such as those that we recommend below, and the more systematic analysis and defence of claims. The more common allegations made in the claims studied were indicative of individual human error or the occasional breakdown of procedure and did not point to a generally substandard level of obstetric care beyond the circumstances of each individual case. The frequency with which similar allegations appear in claims invites further study by obstetricians of a sample of claims to see how often risks were identified at the time and whether the risks identified were properly managed. In general, the character and frequency of the claims in our study led us to conclude that risk management programmes designed to reduce the expense of claims should be directed towards the improvement of methods for handling incidents rather than their prevention. Although every effort should be made to avoid accidents, we doubt whether the number of incidents of the type analysed would be substantially reduced by prophylactic measures. The most obvious area where the handling of untoward obstetric incidents or outcomes could be radically improved is the interval between the date of the incident (ie, date of birth) and the date that the hospital discovers there is to be a claim. Defendant hospitals are seriously prejudiced by such delays, since a claim will become more difficult to defend if the hospital is not aware of its existence for a number of years. Members of staff will become more difficult to trace, memories will fade, and tests that might suggest some alternative cause of the injury become more difficult to evaluate. The duration of claims once begun is a further cause for concern. A major cause of the lengthy duration of claims is the delay that we identified in bringing them in the first place, which greatly adds to the time and expense required to conduct an investigation into what occurred many years earlier. The fact that over half the claims are still proceeding 5 years after they have begun is likely to have a damaging effect on the morale of both doctors and patients. It is also unsatisfactory for health service managers who have to handle claims and budget for them.
Sir Edward Wayne, formerly regius professor of medicine at Glasgow, who was a pioneer in the use of radioiodine in the diagnosis and treatment of thyroid disease and also known for the Wayne diagnostic index, died on Aug 19, aged 88.
cases.
J. B. Capstick P. J. Edwards review of 64 cases. Br Med
Wayne
Lord
programmes aimed at reducing the cost of claims should be directed at improving procedures for dealing with the incidents that do occur rather than on preventive measures, however desirable the latter may be for other reasons. We recommend that doctors and managers instigate procedures for prompt reporting of untoward occurrences or adverse obstetric outcomes and that they devise protocols for investigating the cause of injuries present at birth. We also recommend that the limitation rules in cases involving a brain-damaged plaintiff be reviewed. The present law permits an indefinite delay in bringing a claim, even where those responsible for the injured plaintiff are well aware that a claim could be brought. We can see little justification for this privilege. We believe that the usual limitation period of 3 years from the date when those bringing the claim became aware, or should have become aware, of a possible cause of action should be applied in these
a
would have agreed with another Glasgow Kelvin, that "the life and soul of science is its professor, practical application". Wayne was one of a new group of professors of medicine-clinical scientific professors-many of whom had trained with Sir Thomas Lewis at University College Hospital Medical School. He had obtained a degree in chemistry at Leeds before doing medicine. He went to Lewis’s department in 1931 before returning to Yorkshire as professor of pharmacology and therapeutics at Sheffield University at the age of 32, where during his 20 years + there the department’s teaching and research reputation flourished. While running the university department he also served as paediatrician and consultant physician. From Sheffield he moved to take up the regius chair of Medicine m Glasgow, where he created a department with excellent research facilities, was particularly successful at selecting staff who could make proper use of these excellent facilities, and set the highest standards of patient care and teaching. Naturally, Sir Edward’s opinion was much sought after. He was at various times a member of the Medical Research Council, chairman of the Clinical Research Board, chairman of the Bntish Pharmacopoeia Commission, and chairman of the Advisory Committee on Drug Dependence. He was also chairman of the British Medical Association committee on alcohol and road accidents which recommended that the legal limit should be 80 mg of alcohol per 100 ml blood. He was the first clinical professor m Scotland to appoint senior physicists and biochemists to a medical department, a move that allowed him to further his studies on radioiodine and thyroid disease, and to make quantitative studies of iodine metabolism of a kind and accuracy not previously possible. He was also the first to apply the Bayesian approach to the analysis and practical use of clinical information in collaboration with James Crooks and Richard Robb: in fact his department was at the leading edge in the whole statistical treatment of data. The information produced assisted teams in the department to make highly original and innovative studies on haemoglobin synthesis, osteoporosis, and medical education and teaching methods. Donald Alexander
Edward
Conclusions and recommendations We conclude that health service risk management
1. Ennis M, Vincent CA. Obstetric accidents: 1990; 300: 1365-67.
Wayne
J
A memorial service for Mr Leslie Oliver will be held Nov 1, in the chapel at Charing Cross Hospital.
at
5 pm on
Thursday
Noticeboard Approved
names
Officially introduced on Sept 1 were the British approved names for two veterinary growth-hormone analogues, porcine L-alanylsomatotropin and L-alanyl-des-(32-38)-somatotropin, to be known as somalopor and somenopor, respectively. Also among nineteen new approved names are: the radioprotective agent, amifosooe, sobamast, a histamine H, -receptor agonist, and noberastine. an antagonist to the same receptor; and ridogrel, a thromboxane synthetase inhibitor. Also just published is the cumulative booklet. up to but not including the above supplement. 1. British
HM
Pharmacopoeia Commission 1990. British approved names Stationery Office. 1990. Pp 233 £16 ISBN 0-113212011
1990 London: