"They said we had run out of time. I do not remember consenting"
Medicolegal issues after traumatic childbirth
"Why didn’t anybody tell me?"
In conversation with women that have suffered trauma in childbirth, one of the recurring themes is ‘Why didn’t anybody tell me things could be so bad?’
This statement indicates that legal rights may have been infringed, because women are entitled to be informed of the risks of medical actions in most Western legal systems. In some instances, services go ridiculously far in obtaining a mother’s consent, such as in the case of the management of the third stage of labour, or to cover the use of Vitamin K in newborns. In some places women sign a form obtaining their consent for an internal examination.
Since ‘Rogers vs Whittaker’, a case that came before the NSW High Court in 1993, patients are entitled to be told about the risks of treatment, even if such risks are as low as 1:1000. That judgment, partly because it was about an eye surgery gone wrong and not about an obstetric case, has been systematically ignored in maternity care for over 20 years.
In 2015, the decision in ‘Montgomery vs Lanarkshire’ of the Supreme Court of the United Kingdom re-affirmed that right for antenatal and intrapartum care: 'Where either mother or child is at heightened risk from vaginal delivery, doctors should volunteer the pros and cons of that option compared to a caesarean.’
One of the problems women face in cases of birth trauma has been the ignorance of our legal systems when it comes to the link between certain forms of interventions, especially Forceps, trauma to the pelvic floor, and health problems such as anal incontinence and prolapse.
This ignorance however is fading, and it is largely gone in the case of anal sphincter tears. In 2014, the High Court in England awarded damages of £1.6 million (Davison versus Leitch 2013; EWHC 3092; QB) in a case of a missed diagnosis and failure to warn.
Because we did not know anything about tears of the pelvic floor muscle, the situation in that regard is about a decade behind sphincter tears. The first sign of change was an ACC decision in New Zealand that happened just two months ago in September 2017. ACC is a statutory authority in NZ that takes the place of the civil law system for the compensation of medical misadventure. In the decision dated 6th September 2017, ACC recognised the causal relationship between Forceps, avulsion and prolapse, and acknowledged liability.
It is very likely that the situation will continue to improve for women that have suffered trauma without ever being told of the likelihood of major risks for themselves involved in childbirth, especially with Forceps and vaginal birth after Caesarean, but also in older women, women with big babies, twins and breech babies, and with pregnancies that have gone beyond term.
Our website will try to keep you informed of these matters.