Clinical Practice Guidelines as Standard of Care in Birth Injury Claims

by John McKiggan

Wikipedia defines a Clinical Practice Guideline as:

“… a document with the aim of guiding decisions and criteria regarding diagnosis, management, and treatment in specific areas of healthcare.”

Clinical Practice Guidelines (CPG’s) are frequently referenced in medical malpractice claims and frequently there is a debate as to whether CPG’s establish the standard of care a prudent physician is required to meet in a particular circumstance.

Birth Injury Claims

Anyone who practices obstetric malpractice will be familiar with the Society of Obstetricians and Gynecologists of Canada (SOGC) policy statement on Attendance at Labour and Delivery and their various guidelines for obstetrical care and the American College of Obstetricians and Gynecologists (ACOG) guidelines for perinatal care.

The SOGC guidelines state:

“In all hospitals providing obstetrical care and birthing units, the attending physician must take into consideration the risk of each individual patient, the course of her labor, and the number of patients in labor.”

The CMPA claims that CPG’s “do not define a standard of care, but may inform the standard of care.”

However, the Canadian Association of Emergency Physicians has this to say about Clinical Practice Guidelines:

“Clinical practice guidelines (CPGs) set out standard directions and approaches that assist clinicians to provide appropriate care for specific clinical conditions.”

Isn’t that exactly what the standard of care is supposed to do; provide appropriate care considering the patients specific clinical condition?

If it Quacks Like a Duck…

The CMPA may prefer to call CPG’s something other than a definition of the minimum standard of care. But because they are concise statements of what the medical profession (and obstetricians and gynecologists in particular) view to be appropriate care, the SOGC and ACOG clinical practice guidelines (CPG’s) are clearly relevant evidence to establish the legal standard of care.

CPG’s may be viewed as a base line for providing competent care depending on the patient’s individual circumstances.

Clinical Practice Guidelines for C-Section

Many obstetric malpractice cases involve allegations of undue delay in proceeding with an emergency cesarean section.

The SOGC and ACOG guidelines both suggest a hospital must have the capability of performing an emergency C-section within 30 minutes of the decision to operate.

But is there a sound basis for the 30 minute guideline and has the Supreme Court of Canada in Ediger implicitly affirmed a shorter time frame (higher standard)?

The “Science” Behind the 30 Minute Rule

Sustained bradycardia is probably the most obvious circumstance that may require an emergency C-section. There are other clinical signs that should cause a prudent healthcare professional to consider the need for emergent surgical intervention, including:

Prolonged deceleration;

Recurrent late or variable decelerations with minimal or absent variability.

Potential causes to be considered include placental abruption, excessive bleeding, uterine rupture, cord prolapse, severe preeclampsia, among others.

Most of the current scientific knowledge about the adverse effects of hypoxia, ischemia, and asphyxia come from studies on primates where the blood flow or oxygen to a primate fetus was interrupted.

How Fast Does Brain Damage Happen?

The earliest experiments suggest that acute asphyxia lasting less than 8 minutes may not cause irreparable brain damage. Asphyxia lasting more than 8 but less than 10 minutes produced some transient neurological symptoms. Asphyxia lasting more than 12 minutes caused significant and permanent brain damage.

Later studies indicated that a period of 12 to 13 minutes of total asphyxia could cause brain damage, and total asphyxia lasting more than 20 minutes typically led to the death of the fetus.

Critics of the thirty-minute-decision-to-incision rule have suggested in circumstances like complete abruption and complete cord occlusion delivery must occur in less than 5 minutes and no more than 15 minutes in order to avoid permanent damage.

Should the 30 Minute “Rule” be Changed?

There is significant scientific literature that is critical of the thirty-minute rule, and prudent practitioners must recognise the decision to perform an emergency caesarean section should not be based on an arbitrary temporal guideline but rather the specific clinical signs and symptoms in each particular case.

In my next post, I will examine the 30 minute “rule” and a recent decision by the Supreme Court of Canada that arguably suggests a new standard is necessary.

Want More Information?

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If you or a loved one have suffered injuries that you think may be due to medical malpractice you can buy a copy of my book: Health Scare – The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation on Amazon.com.

The revised edition of the book contains a new chapter on the link between medical malpractice and birth injuries, and cerebral palsy claims caused by hypoxia and ischemia.

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