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Cerebral palsy litigation threatens future of obstetrics

Thursday, 6 October 2005

It has never been safer to have a baby and never more dangerous to be an obstetrician, according to an international group of experts on cerebral palsy.

The University of Adelaide's Professor Alastair MacLennan is part of a team of four international cerebral palsy experts who have published their concerns about the effect of litigation after diagnosis of cerebral palsy in the Journal of the American Medical Association (JAMA), released today.

The article calls for no-fault system, specifically for cerebral palsy, with automatic federal or state pensions for these children; better peer review of cases with signs of newborn brain damage to optimise labour, birth and resuscitation protocols and give feedback to the parents throughout the process and better policing by the medical profession of rogue expert witnesses, amongst its calls for action.

The authors are Professor Alastair MacLennan, Professor of Obstetrics and Gynaecology at the University of Adelaide, Dr Karin Nelson, a Paediatric Neurologist from National Institutes of Health, Bethesda, Dr Gary Hankins, a Maternal Fetal Medicine specialist from Galveston, Texas and Dr Michael Speer, a Neonatologist from Houston, Texas.

"Cerebral palsy occurs in at least one in 500 births. Rates of cerebral palsy have not declined in 40 years despite improved care and escalating caesarean section rates," Professor MacLennan explained.

"The threat of litigation is one of the major reasons for obstetricians leaving obstetrics and for a huge escalation in caesarean section births. The increase in caesarean deliveries has not led to a decrease in cerebral palsy rates.

"There is a large litigation industry in cerebral palsy. Plaintiff lawyers' sites on the Internet perpetuate the myth that electronic fetal monitoring in labour can reduce the risk. An "expert" witness can usually be commissioned who will say there was negligent care and the cerebral palsy in this particular case was preventable.

"In the face of this, it is not surprising that maternity hospitals are closing in the US and Australia, where such litigation is rife and obstetricians are changing to gynaecological practice. It is estimated that cerebral palsy litigation costs governments and insurers around the world billions of dollars each year.

"We are not against the option of litigation where there are preventable problems associated with childbirth. However, because there is no scientific evidence that cerebral palsy can be prevented, it is unjust and destructive to maternity services for the insured carers to be used as a de facto social welfare system for these unfortunate children.

"Sympathetic juries or courts may want to witch-hunt and compensate children born with cerebral palsy and may believe selected plaintiff witnesses who declare that their policy could have prevented the cerebral palsy outcome. The huge costs associated with such scientifically non-evidence-based awards or settlements - often millions of dollars - are breaking the health system and demoralising the profession.

Professor MacLennan explained that 76% of obstetricians in the USA reported having faced litigation, and cerebral palsy cases made up the majority of costs being claimed, yet up to 70% of the awards and settlements could go to the legal system, rather than the family or carers. Australia is the second most litigious country after the US.

"Cerebral palsy is a currently unpreventable, non-progressive disorder of movement control. If the disability is severe, for example, with spasticity of all the limbs, it greatly impairs the quality of life of the child and, often, their carers."

"A major problem is that plaintiff lawyers are able to select medico legal witnesses who give a predictable, non-scientific, commissioned opinion.

"These expert witnesses usually have no expertise in the causes of cerebral palsy. Many have retired from practice, yet they usually give evidence that the cerebral palsy was predictable through electronic heart rate monitoring in labour, that delivery should have occurred earlier in labour and that, if this had been the case, the cerebral palsy would have been prevented.

"Unfortunately there is no clinical or scientific evidence that this is true. Recent research shows a variety of underlying processes that may damage the brain and that they often begin silently during pregnancy or in early labour and cannot be recognised or prevented.

Genetic susceptibility and infection during pregnancy are some of the recently identified risk factors for cerebral palsy by the South Australian Cerebral Palsy Research Group. The affected fetus/baby may only show signs of compromise during late labour or after delivery. However, attendants may assume that acute (recent) asphyxia (lack of oxygen) was the cause of the disability, rather than the result, of a longer-standing problem.

As experts in the field of cerebral palsy, the team is advocating solutions to this obstetrics crisis, which include:
1 - A no-fault system, specifically for cerebral palsy, with automatic federal or state pensions for these children.
2 - Better peer review of cases with signs of newborn brain damage to optimise labour, birth and resuscitation protocols and give feedback to the parents throughout the process.
3 - Better policing by the medical profession of rogue expert witnesses.
4 - The establishment of special Health Courts.
5 - Better independent dispute resolution processes before civil litigation and
6 - Better education of the public about birth outcomes.

REFERENCES

MacLennan AH, Nelson KB, Hankins G, Speer M. Who will deliver our grandchildren? Implications of Cerebral Palsy litigation. JAMA 2005; 294: 1688-90.

Gibson CS, MacLennan AH, Hague WM, Haan EA, Priest K, Chan A, Dekker GA for the South Australian Cerebral Palsy Research Group. Associations between inherited thrombophilias, gestational age, and cerebral palsy. Amer J Obstet Gynecol 2005; 193: 1437.el-1437.e12.

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