Clinical Review

Sound strategies to avoid malpractice hazards on labor and delivery

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A communication–trust–shared responsibility triad established at the first prenatal visit is your best hedge against allegation of malpractice even much later, on L & D



CASE: Is TOLAC feasible?

Your patient is a 33-year-old gravida 3, para 2002, with a previous cesarean delivery who was admitted to labor and delivery with premature ruptured membranes at term. She is not contracting. Fetal status is reassuring.

Her obstetric history is of one normal, spontaneous delivery followed by one cesarean delivery, both occurring at term.

She wants to know if she can safely undergo a trial of labor, or if she must have a repeat cesarean delivery. How should you counsel her?

At the start of any discussion about how to reduce your risk of being sued for malpractice because of your work as an obstetrician, in particular during labor and delivery, two distinct, underlying avenues of concern need to be addressed. Before moving on to discuss strategy, then, let’s consider what they are and how they arise: Allegation (perception). You are at risk of an allegation of malpractice (or of a perception of malpractice) because of an unexpected event or outcome for mother or baby. Allegation and perception can arise apart from any specific clinical action you undertook, or did not undertake. An example? Counseling about options for care that falls short of full understanding by the patient.

Allegation and perception are the subjects of this first installment of our two-part article on strategies for avoiding claims of malpractice in L & D that begin with the first prenatal visit.

Causation. Your actions—what you do in the course of providing prenatal care and delivering a baby—put you at risk of a charge of malpractice when you have provided medical care that 1) is inconsistent with current medical practice and thus 2) harmed the mother or newborn.

For a medical malpractice case to go forward, it must meet a well-defined paradigm that teases apart components of causation, beginning with your duty to the patient (TABLE 1).

TABLE 1 Signposts in the medical malpractice paradigm

When the clinical issue at hand is …… Then the legal term is …
A health-care professional’s obligation to provide care“Duty”
A deviation in the care that was provided“Standard of care”
An allegation that a breach in the standard of care resulted in injury“Proximate cause”
An assertion or finding that an injury is “compensable”“Damages”
Source: Yale New Haven Medical Center, 1997.5

Allegation of malpractice arises from a range of sources, as we’ll discuss, but it is causation that reflects the actual, hands-on practice of medicine. We’ll examine strategies for avoiding charges of causation in the second part of this article.

(For now, we’ll just note that a recent excellent review of intrapartum interventions and their basis in evidence1 offers a model for evaluating a number of widely utilized practices in obstetrics. The goal, of course, is to minimize bad outcomes that follow from causation. Regrettably, that evidence-based approach is a limited one, because of a paucity of adequately controlled studies about OB practice.)

CASE: Continued

You consider your patient’s comment that she would like to avoid a repeat cesarean delivery, and advise her that she may safely attempt vaginal birth.

When spontaneous labor does not occur in 6 hours, oxytocin is administered. She dilates to 9 cm and begins to push spontaneously.

The fetal heart rate then drops to 70/min; fetal station, which had been +2, is now -1. A Stat cesarean delivery is performed. Uterine rupture with partial fetal expulsion is found. Apgar scores are 1, 3, and 5 at 1, 5, and 10 minutes.

Your patient requires a hysterectomy to control bleeding.

Some broad considerations for the physician arising from this CASE

  • The counseling that you provide to a patient should be nondirective; it should include your opinion, however, about the best option available to her. Insert yourself into this hypothetical case, for discussion’s sake: Did you provide that important opinion to her?
  • You must make certain that she clearly understands the risks and benefits of a procedure or other action, and the available alternatives. Did you undertake a check of her comprehension, given the anxiety and confusion of the moment?
  • When an adverse outcome ensues—however unlikely it was to occur—it is necessary for you to review the circumstances with the patient as soon as clinically possible. Did you “debrief” and counsel her before and after the hysterectomy?


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