Medical Lawyer and SAMLA Director: Cape Town branch, Romany Sutherland in conversation with Prof Ismail Bhorat, Head of Foetal Medicine at UKZN

When can negligence be proven in cerebral palsy (CP) cases?  Even if there was negligence, can it be directly linked to the outcome of a baby being born with cerebral palsy? How do you prove that there is a causal link between the negligence and the outcome?

These were the questions lawyers, obstetricians, paediatricians, neurologists, academics, midwifes, radiologists and neonatal nurses grappled with during a workshop hosted by the SA Medico-Legal Association (SAMLA) in conjunction with UCT on 7 September 2019. Held in Johannesburg and video-linked to delegates in Bloemfontein, Durban and Cape Town, the workshop featured presentations from experts in both the medical and legal fields focusing on a spectrum of issues relating to the aetiology of cerebral palsy, the instruments and records used to determine a causal relationship, the standard of care, recordkeeping and the challenges specific to South Africa

The workshop allowed for the legal and medical professions to directly interact outside a court of law to come to a better understanding of what has become the most challenging, devastating and expensive cases in the South African medico-legal environment. Although only between 10 and 14% of all cerebral palsy cases can by linked to hypoxia during the intrapartum process, “it is that 10% that we are looking at” said Adv John Mullins SC.  Proving causation remains extremely hard, in part because of the time-lapse between the event and the instigation of litigation and the reliance on records and facts that are often scientifically questionable, incomplete and ineffective in proving direct causation.

Topics discussed included the effectiveness of radiology reports, cardiotocography (CTG), partograms, and hospital and other medical records in determining causality while issues such as the different types of CP, the role of antenatal risk factors in CP, advances and developments in ensuring optimal intrapartum care and neonatal resuscitation were explained by experts in the fields of obstetrics, paediatric neurology, foetal medicine, neonatal nursing and radiology. The workshop was concluded with a vigorous debate about the admissibility of CTG to prove causality.

Acknowledging that proving causality is the weak point for both lawyers and medical experts, Advocate John Mullins emphasised that a medical professional can’t be held liable only because things went wrong and because there was negligence.

“It is only when it can be proven that the result of what went wrong was the result of negligence and that the harm could have been avoided in the absence of negligence,” Mullins pointed out.

Screening for negligence

Giving his perspective from an obstetrician’s point of view, Prof Ismail Bhorat, Head of Foetal Medicine at the University of KwaZulu-Natal suggested that the current parameters being used in assessing what happened during the intrapartum period i.e. a CTG tracing, are inadequate because they are used retrospectively, opening them up to subjective interpretation and bias.

Advocating for universal implementation of computerised cardiotocography (CTG) and mandatory cord pH assessments, Prof Bhorat described them as assessment tools that could revolutionise and change the face of litigation against obstetricians relating to cerebral palsy cases in SA.

The benefits of umbilical cord pH assessment, Prof Bhorat pointed out, are that it can retrospectively assess infant stress during labour; measure the quality of intrapartum care and provide a quantitative, unbiased direct assessment of care during this period; guide decisions on hypothermia therapy following perinatal asphyxia and provide precise and easy-to-interpret information in medico-legal cases.

“Normal pH in effect excludes a causal relationship between an acute intrapartum hypoxic event and subsequent neurological disability. Studies suggest that obtaining arterial cord pH even in vigorous new-borns should be considered as objective documentation,” Prof Bhorat said.

“If we have a pH of <7 and a base deficit of >12, then there was intrapartum hypoxia, which could be related to negligence in which case you admit and settle, preventing cases going through a protracted legal process,” he added.

Citing research showing only a 2% false-positive rate with cord pH compared to a false-positive rate of between 50% and 90% with CTG, Prof Bhorat referred to a Cochrane Review that found no evidence of the usefulness in foetal assessment with CTG, calling it an unprecise modality that is used retrospectively to create simplicity in legal terms.

He urged delegates to stop looking only at what happened intrapartum when determining the cause of CP but to consider the many other factors the foetus could have been exposed to antenatally which could have predisposed the baby to cerebral palsy.

He also questioned the use of radiological assessments years after the birth to determine liability in CP cases, saying although it can confirm brain damage, its effectiveness in establishing a link between intrapartum hypoxia and the cerebral palsy is doubtful because of the time-lapse between the actual event and the scan, and that, with the outcome known, the findings are based on retrospective speculation.

According to Prof Bhorat, the current rollout of computerised CTGs and universal cord pH screening in the private and public sectors will go a long way in reducing vexatious litigation in CP cases and in the long term put a hold on obstetricians’ skyrocketing indemnity insurance payments.

CTG has a role

During the CTG debate, obstetricians Prof Peter MacDonald and Dr Peter Koll suggested that while cardiotocography should be retained to monitor the baby’s heart rate and contractions to determine, in conjunction with other pre-existing risk factors, if there is foetal distress and to decide when to intervene, it is not an infallible diagnostic instrument.

“Using heart rate to determine an ischaemic injury to the brain is extremely difficult as the foetal heart is not a direct marker to relate what is going on in the brain. That is the reason for the high false-positive rate, which means that most babies with abnormal CTGs will be born normal,” said Dr Koll, adding that if the CTG record is used in retrospect where the outcome is already known, some evidence of abnormality will be invariably found. He also referred to CTGs role in increasing the C-section rate in South Africa, opening up the possibility of other complications.

Arguing in favour of CTG, gynaecologist Dr Pierre Davis said foetal monitoring remains mandatory in every labour to timeously identify foetuses that are inadequately oxygenated to enable action before brain injury occurs and in providing reassurance of adequate foetal oxygenation to prevent unnecessary obstetric intervention.

Noting that a healthy baby at the onset of labour will almost never develop hypoxic-ischaemic encephalopathy (HIE) without displaying foetal heart rate decelerations, he stressed the importance of CTG in determining whether interventions such as C-section should be done in preventing a CP outcome.

Conceding that the high false-positive CTG rate is problematic, he advised to rather “err on the safe side” than ignoring the CTG.

Guidelines required

Responding to the debate, SAMLA Director, Dr Herman Edeling, urged SASOG and paediatric neurologists to draft guidelines and consensus statements that will give scientific and legal clarity on when CTG should be taken into account in the determination of liability.

“The provision of guidelines by the scientific community that set a reasonable standard for action on CTG will take away the reasons for fighting in court because it will allow for the interpretation of the circumstances of the case against the standard to determine if there was negligence or not,” Dr Edeling said.

Concluding the workshop, Ian Dutton, and Advocate who specialises in Medical Law, reiterated the importance of the workshop in identifying the complex issues involved in determining liability in CP and in highlighting the challenges in proving factual causation within the context of clinical negligence.