MEDICAL LITIGATION IN OBSTETRICS & GYNAECOLOGY PRACTICE

1. MEDICAL LITIGATION IN OBSTETRICS & GYNAECOLOGY PRACTICE Dr AO Oladele Dr IT Akinola Dr OO Saanu Barrister V Ilori Dr IO Morhason-Bello

2. Outline • Case presentation • Introduction/definition • Definition of Key Concepts • Potential sources of medical litigation • Some examples of Medico-legal Cases in OBGYN • Effects of medical litigation • Reducing cases of litigation • Conclusion • Recommendation

3. Case Summary (Marc & Novak , 2001) • Mrs. X was scheduled for induction of labour on 27/09/2001 on account of postdatism • At 7am • Pitocin induction was commenced • On epidural analgesia • FHR tracing at presentation was normal • FHR tracing later revealed signs of distress with hyperstimulation with no intervention

4. Case Summary………………… • 1.45pm • Second stage of labour • She pushed for 30 minutes but could not bear down effectively due to the level of anesthesia. • 2.15pm • Her epidural anesthetic was turned down • 3.00pm • Resumed bearing down • She was directed to push for almost 4 hours until she was exhausted.

5. Case Summary……………….. • The attending physician was in and out of the labour and delivery room all day attending to other affairs – • Seeing other patients at her office, • Going to the clinic • Left the hospital again at 5:00pm to see patients at her office when her presence was needed. • Labour was left in the care of the midwives

6. Case Summary……………………. • 6.40pm • The doctor returned to the hospital and performed the low forceps delivery • 7.01pm • The baby delivered with severe birth asphyxia • The baby suffered Hypoxic Ischemic Encephalopathy (HIE) and diagnosed with Cerebral Palsy of the spastic quadriplegic type

7. Case Summary …………………….. • Errors Identified • Failure to identify and respond to fetal intolerance to labour shown on the fetal heart tracing • Failure to improve the baby's oxygenation • Failure to perform fetal scalp pH sampling to diagnose acidosis • Failure to invoke the chain of command to effect timely delivery

8. Case Summary …………………….. • Errors Identified • The baby presented with an absolutely perfect fetal heart tracing and it deteriorated without the necessary and appropriate intervention that would have prevented this tragic outcome.

9. Case Summary …………………….. • The Settlement • After four years of litigation • The parent were compensated with $18,000,000.00 • Equivalent to ₦3,096,000,000( at ₦172 to a dollar) • The proceeds of this settlement were deposited into a special trust account for the benefit of the child

10. Introduction • It is the expectations of patients that medical practitioners are properly trained in their fields of endeavour • They see them as solution providers for all kinds of health problems and thus put their trust and confidence in them • Despite these expectations, medical professionals sometimes make mistakes because of poor judgment, inexcusable negligence, lack of immediate care, malpractice or focus on wrong ailment (LauretteIberiyenari, 2013)

11. Introduction • With the increasing rates of negligence, patients are beginning to seek redress and are being enlightened by legal practitioners • Health care practitioners are thus confronted with the problem & risk of being sued • This is believed to have influence various aspects of gynaecological & obstetrical practice(Schifrin & Cohen 2013)

12. Introduction • The four common clinical causes of medical litigation in obstetrics and gynaecology are (Mavroforou et al 2005): • Cases involving fetal distress • Uterine rupture after a vaginal birth in a woman with previous C-section • Shoulder dystocia • Misdiagnosis of cancer • Ligation raised from most of the cases is driven by bad outcomes not by malpractice

13. Definitions • Medical litigation is a process of carrying out a lawsuit or civil action as opposed to criminal proceedings (Studdert et al 2005) • Medical malpractice or negligence is defined as the failure or deviation from medical professional duty of care • It is a failure to exercise an accepted standard of care in medical professional skills or knowledge, resulting in injury, damage or loss (Studdert et al 2005)

14. Definitions… • Defensive medicine is defined as medical actions, performed mainly in order to refrain from being sued, rather than actually aiding the patient • Some health care practitioner claim that it is a legitimate phenomenon, while others consider it immoral (Asher et al. 2013) • Defensive medicine brings with it exponential increases in the costs associated with clinical practice

15. Definitions….. • Litigants are persons (parties) involved in a lawsuit • Plaintiff refers to the person who initiates the lawsuit. It can be the patient, relatives or state • Defendants refers to the person sued in a civil action (or person accused of a crime). • It can be the health care practitioner or institution

19. Origin of Medical Litigation • The earliest medical malpractice case was Stratton V. Swanlond decided in 1374(Chapman, 1992) • The defendant (surgeon) attempted to repair plaintiff's traumatically mangled hand • The plaintiff claimed that the surgeon guaranteed to cure her injury for a reasonable fee, but after the treatment her hand remained severely deformed

20. Origin of Medical Litigation… • The lawsuit was dismissed because of procedural error in the Writ of Complaint • However, the judge set forth principles to follow in future cases which are recognized today • “He stated that a physician should be liable when a patient is injured as a result of negligence, however if the physician exercised all due care, he would not be liable even if he did not obtain consent”

21. Medical Ethics and The Law • Medical law is the aspect of the law which governs the relationship between the healthcare provider and patient • The medical practitioner is bound by certain laws depending on the circumstances of his practice • Law and ethics may overlap since obtaining patient permission is both legally required and the “right thing to do”(Johnson, 2001) • Good process should help create trust, rapport and alliance by showing respect for the patient

22. Rights of The Patients • A patient has a right to know the clinic/hospital rules, regulations and charges before getting treated/admitted • A patient has absolute right to privacy, consultation, physical examination, case discussion, procedures and the right to have his treatment kept confidential • He has a right to ask any person who is not directly involved in his treatment, examination, e.t.c not to be present

23. Rights of The Patients…. • She has a right to know about the nature of his illness, and reports of investigations • It is the patient’s right to know: • Necessity of treatment • Alternative modes of treatment • Risk of pursuing the treatment/undergoing a surgery including their inherent risks and complications • Probable duration of treatment; • Prognosis of illness in the language he can understand

24. Rights of The Patients…. • It is equally a patient’s right to seek consultation from another doctor/specialist • It is her right as a patient to refuse further medical care. She can leave against medical advice, to the extent that it does not contravene any law. • In case she decides to quit treatment against medical advice, he has a right to obtain details of investigations and treatment undergone

25. Duties of Medical Doctors In Nigeria • The laws and various Codes of Medical Ethics and Declarations have been enacted to regulate medical practice in Nigeria. Among these laws are: 1. Medical and Dental Practitioners Act, Cap LFN 2004 2. Hippocratic Oath 3. Declaration of Geneva 4. Declaration of Helsinki 5. International Code of Medical Ethics

26. Duties to Patients • A medical doctor owes the following duties to the patients: • Standard of care • Providing information to the patient regarding-necessity of treatment • Emergency care • Consent for treatment

27. Professional Ethics Duties • This is another very important duty of a medical practitioner and these can also be summarized as follows:- • A doctor has a duty not to refuse professional service on grounds of religion, nationality, race, politics or social status • Duty not to associate with unregistered medical practitioner and not to allow him to practice what he is not qualified for • Duty not to indulge in self-advertisement, except such as is expressly authorized by law

28. Professional Ethics Duties • Duty not to issue false certificates and bills • Duty not to attend to patient when under the effect of alcohol • Information given by patient to be kept secret • A medical doctor should not talk carelessly about his colleagues (Medical and Dental Practitioners Act, Cap LFN 2004)

29. Informed Consent • Informed consent is a process of information exchange • A competent (understands nature/consequences of actions) un-coerced patient who understands the procedure, its risks, benefits and alternatives then makes a free informed choice • It is a dialogue in which both parties participate actively(Anderson & Wearne, 2007)

30. The Elements of Consent • These includes the following: • Nature of the procedure • Its risks and possible benefits • Alternatives to the procedure • Competent patient, engaged professional • No coercion or duress • A full discussion and documentation

31. Some Exceptions to Consent • Emergency • Unforeseen developments in surgical procedure • (No need to wake patient up for permission if immediate medically necessary action is required) • Newborn Screening

32. Documenting The Decision • It is noteworthy to remember that the process of arriving at a decision is a conversation • Once a decision is made it is documented on an “Informed Consent” form • The form is the outcome and not a substitute for the process of information exchange

33. Consent-do We Need It? • Consent does the following: • Allows clarity for who decides. (e.g. specific rights for minors) • Allows clarity for what decisions can be made (e.g. end of life) • Shows respect and helps build a sound provider-patient relationship

34. UCH Consent Form

35. Consent Form for Hysterectomy

36. Consent Form For Ectopic Pregnancy

37. Consent Form for Caeserean Section

38. Informed Refusal • Patient is told the indicated procedure, its risks, benefits and alternatives and patient refuses. • If injury occurs can patient claim malpractice? • Example: Patient refuses ultrasound then has a life threatening bleed from an undiagnosed placenta previa. • Why refusal? Belief that ultrasound causes autism

39. Disagreement between Provider and Client • Must all patient choices be honored? • What if the choice violates the health care practitioner’s beliefs (abortion, unconventional therapy) or professional rules (illegal drugs) • Resolution: Parting of the ways in extreme cases but must counsel and be sure patient will not be abandoned

40. Avoid Abandonment during disagreement period • Tell patient what the disagreement is and what options you are willing to provide. No guilt or blaming • If patient disagrees then provide a period of time to allow transfer of care • Do not discontinue care if that would result in avoidable injury and document properly

41. The Limits of Autonomy Sample Case: • 24 yr. old recently married patient wants an abortion for a 6 week pregnancy. Her BP is high (157/99mmHg). A review of her medical records shows 6 months of untreated elevated pressures. • You offer surgical versus medical abortion; Patient refuses surgical • The risks of stroke with medical approach was fully discussed. Patient says she understands then says: “Now can I have the pill?” • Should the provider refuse?

42. The Limits of Autonomy • Informed choice or physician’s right to refuse? • Can provider’s treatment of a medical condition trump patient’s autonomy? • In the prior refusal of ultrasound with a placenta previa example assume the baby is born damaged • Mother may not have a successful legal claim because an informed refusal was documented. Does baby have an independent claim?

43. Minors • According to Nigerian Constitution • A person who is under the age of full legal responsibility (< 18 years) • Minors can consent for certain things as allowed by State law • The Basic Rule is Parent/guardian consent • Exceptions • Emancipated minor (married, armed forces, court order), State law, mature minor rule

44. Incompetent Patients • If adult but never competent due to mental status then guardian decides • If adult but transitorily incompetent (coma) then Durable Power of Attorney (with named Advocate) or Spouse or guardian decides. • (e.g. Sterilization of incompetent adult)

45. A case study of an Incompetent Patient • Pregnant woman in ICU with eclampsia. It is day 5 and patient is stable and ready for transfer to general unit • Patient refuses transfer because she believes care is better in ICU • How to proceed? Justice issues? Allocation of scarce resources issues?

46. Another Case Scenario • A competent 24 year old with heavy bleeding requesting hysterectomy • Health care practitioners have not exhausted medical therapy but patient is “fed up” and wants the surgery • Health care practitioner not ready to move to surgery • What happens?

47. Another Case Scenario • A 26 year old primigravida wants C-Section to preserve her perineum. • No medical indication for C-Section • Professional societies (ACOG and NIH) says patient gets to choose • Provider not sure this is in patient’s best interests

48. Potential Sources of Medical Litigation • PROVIDER • Lack of awareness of the problems • Culture of silence • Blame and shame mentality • Fatigue

49. Potential Sources of Medical Litigation • Fatigue • Burnout is a state of emotional, mental, and physical exhaustion caused by excessive and prolonged stress. (Melinda S. et al 2013) • The Working Time Act( ILL 1995) • Eight-hour working day • 40-hour working week

50. Potential Sources of Medical Litigation • INSTITUTION • System constraints • Staffing problems • Lack of protocols/guidelines • Training and re-training