Obstetric anaesthetists may be involved in medicolegal issues in a number of different contexts, all of which have relevance or potential relevance to obstetric care. These may concern consent and capacity (see Chapter 169, Consent); various statutes such as the Mental Capacity Act, Mental Health Act, Data Protection Act, Human Tissue Act and Human Rights Act; involvement in coroners’ courts; the risk of being accused of assault and/or battery; and claims of negligence. It is the last, however, that is by far the most likely reason for an obstetric anaesthetist to encounter the legal system.
Claims within the NHS are handled by NHS Resolution (which was formerly known as the NHS Litigation Authority, NHSLA), although the named NHS body itself is the defendant so that negligence claims are made against (and defended by) the trust and not the individual employees involved in the case. However, staff working outside the NHS may be personally named in negligence claims.
There is a general trend in the UK towards patients seeking redress in the courts when they think that they have been harmed as a result of a negligent act on the part of their medical attendants. In 2017-18, the NHS made payments in excess of £1.63 billion in respect of negligence claims, a 33% increase over the previous year. Since the Clinical Negligence Scheme for Trusts (CNST) started in 1995, surgery (39%), medicine (19%) and obstetrics and gynaecology (18%; obstetrics 10%) have been the most commonly involved specialties, with anaesthesia accounting for 2%. However, obstetrics and gynaecology accounts for 51% of the costs, and within anaesthetic claims, regional and obstetric anaesthesia accounts for ~40% of the costs of claims. Before it became NHS Resolution in 2017, the NHSLA developed a 5-year strategy to help address the escalating costs of claims; one area of focus is obstetric claims, and in 2017 the Early Notification Scheme of potential cases of brain damage at birth was launched, which aims to assist with record keeping, duty of candour, mediation and peer support.
For a negligence claim to succeed, the patient has to demonstrate: (1) that the doctor had a duty of care towards her (normally not a matter for contention); (2) that there was a failure of that duty of care (the standard applied here is that of the ordinary doctor professing skill in anaesthesia); and (3) that she has suffered harm as a result. The test for causation is that were it not for the failure of care, the harm would not have occurred. However, a judgment in 2005 in the House of Lords relating to consent has established that, even were this not to apply, the doctor may still be found negligent.
Problems and special considerations
Consent
Consent is equally valid whether written or verbal, the only difference being that a record of the former is retained in the hospital notes as confirmation if a case comes to court after some years. Consent is only valid if it is informed, which means that the patient has been presented with enough information about the risks and benefits of the procedure to make a sensible choice. This can obviously be difficult in practice if a patient is in severe pain and under the influence of Entonox or opioids, as is often the case when epidural analgesia is needed in labour. It is generally agreed that provision of information in the antenatal period is best, although many women may not consider it applicable to them at this time (see Chapter 169, Consent).
Regional analgesia and anaesthesia
The extent of information required when seeking consent for regional analgesia or anaesthesia is controversial, although most surveys suggest that some women would wish to know most, if not all, complications. Most obstetric anaesthetists would now consider, as a minimum, explanation of the risk of partial or complete failure of the technique, dural puncture and headache, motor block, a fall in blood pressure, neurological complications, sensation during caesarean section and the possibility of conversion to general anaesthesia. Signed, written consent is not generally considered necessary currently, although the pertinent aspects of the discussion should be recorded, and a note made if the patient’s condition does not allow for a full explanation. Antenatal access to an anaesthetist should be available for women who have particular concerns.
Pain during caesarean section
Pain felt during caesarean delivery under spinal or epidural anaesthesia is thought to be the most common source of successful litigation against UK obstetric anaesthetists, accounting for 31% of obstetric claims related to regional anaesthesia. In practice, a pain-free procedure cannot be guaranteed, and the anaesthetist must mention this possibility when obtaining consent. The level of block must be carefully checked before starting the operation, and recorded, along with the sensory modality used. Any complaint of pain should be taken seriously, documented and treated.
Headache
Headache following accidental dural puncture is a common source of complaint. The occurrence of a dural tap is not, in itself, enough to demonstrate negligence, as long as the epidural technique was acceptable and the headache was correctly managed. This means that good analgesia should be established for labour and the patient followed up daily while in hospital. Any complaint of headache, neck pain or visual disturbances should be documented, and definitive treatment, in the form of epidural blood patch, should be offered early. Any mother who has suffered a dural tap or postdural puncture headache should be encouraged to contact the hospital if there is a recurrence or worsening of symptoms. These patients should be routinely followed up at 6-10 weeks postpartum.
Backache
Claims are often made for backache after epidural analgesia, but few, if any, succeed. Prospective studies have shown that new long-term backache is common following childbirth but is not related to whether or not regional analgesia has been used.
Management options
It is far easier to minimise the risk of litigation than to deal with it once it arises. Sensible guidelines for the management of common obstetric anaesthetic situations are essential. Good communication with patients and relatives, and keeping them informed, will ensure them of one’s good intentions - very few patients institute proceedings against doctors who have communicated well. Most hospitals now have an efficient risk-management procedure that includes rapid response to complaints, with the result that patients, most of whom only want an explanation of what went wrong and an apology, will often be content without needing to take more formal action. Complaints from mothers or their partners, however informal, must be handled at a senior level.
If, despite these precautions, legal action ensues, then good record keeping will help the anaesthetist to recall what happened long after the case has faded from memory. Even if it was always an individual anaesthetist’s routine practice to give a test dose after siting an epidural, for example, it will be difficult to convince a judge of this fact without documentary evidence relating to the particular case. The same applies to the explanations given when obtaining consent for a procedure. A case of negligence will often come down to the anaesthetist’s recollection versus that of the patient - needless to say, she will remember the whole incident perfectly, while the anaesthetist may have performed many similar procedures since. Equally, it is well documented that the patient’s recollection of the consent process is poor, so documentation of the consent discussion is essential. The need for accurate records is particularly important when the complaint is of a subjective nature, such as pain or awareness during caesarean section. (See also Chapter 171, Record keeping.)
An accusation of negligence is a very painful and traumatic experience for a doctor, and it is important to seek support from peers and seniors, especially those who have experience of medicolegal practice.
Key points
• Negligence claims against obstetric anaesthetists continue to increase.
• Good relations should be maintained with patients and their relatives.
• Any complaint should be dealt with promptly.
• Full records are the best defence and should include details of explanations given before consent.
Further reading
Cook TM, Bland L, Mihai R, Scott S. Litigation related to anaesthesia: an analysis of claims against the NHS in England 1995-2007. Anaesthesia 2009; 64: 706-18.
McCombe K, Bogod DG. Learning from the law: a review of 21 years of litigation for pain during caesarean section. Anaesthesia 2018; 73: 223-30.
NHS Litigation Authority. Claims (including factsheets). Available via https://resolution.nhs.uk (accessed December 2018).
Szypula K, Ashpole KJ, Bogod D, et al. Litigation related to regional anaesthesia: an analysis of claims against the NHS in England 1995-2007. Anaesthesia 2010; 65: 443-52.
Yentis SM, Hartle AJ, Barker IR, et al. AAGBI: consent for anaesthesia 2017. Anaesthesia 2017; 72: 93-105.