Birthing guideline should focus on healthy babies, not avoiding lawsuits

By Paul Russell, LegalMatters Staff • An updated guideline concerning fetal surveillance in labour puts undue emphasis on medico-legal considerations and not enough on reliable data and healthy outcomes for babies, says personal injury lawyer Richard Halpern.

Halpern, a senior lawyer with Gluckstein Lawyers in Toronto, recently wrote an extensive critique about the 2020 Clinical Practice Guideline No. 396, issued in March by the Society of Obstetricians and Gynecologists of Canada (SOGC). The Society represents more than 4,000 health professionals across Canada, including obstetricians, gynecologists, family physicians, nurses and midwives.

The guideline is intended to guide the profession’s efforts in monitoring the health of babies during labour and delivery, but he tells LegalMattersCanada.ca that it falls short of providing any improvement of the previous guidelines, now more than a decade old.

“Improved outcomes are the best defence to medical malpractice claims, while defensive guidelines work against this goal,” says Halpern.

He explains that fetal surveillance involves monitoring a fetus’s key behaviour during delivery, with a focus on oxygenation and especially the fetal heart rate.

“The heart rate gives you a good indication of how well babies are coping with labour stress and if they are well oxygenated,” Halpern says. “In some cases, a heart rate that deviates from normal doesn’t mean the baby is in trouble, all it means is the baby is telling doctors, ‘I may need a break from all these contractions.’”

Avoidable brain injuries will continue

He says the previous update to the comprehensive guideline was in 2007, with the latest version offering few significant improvements.

“The 2020 guideline is unlikely to improve outcomes for newborns,” Halpern says. “The objective should be that fewer babies are born injured. But under this guideline, my guess is that unacceptable levels of completely avoidable newborn brain injury will continue unabated.”

Some wording changes between the two documents are particularly telling, he says, noting the 2020 guideline seeks merely to “minimize” the risks associated with birth asphyxia, rather than to “decrease” its incidence, the goal of the 2007 guideline.

Halpern also criticizes the new guideline for relying on unreliable and dated studies when making recommendations and failing to catch up with more recent data. An example from the critique is his discussion of the value of electronic fetal monitoring (EFM) and intermittent auscultation (IA) in the birthing process.

“The continued endorsement of IA over EFM in low-risk deliveries, which support is based on old research of dubious value in modern obstetrics, is unwarranted in my view,” he writes in his critique.

“The basis for permitting IA in low-risk labours is the presumption that EFM increases the risk of Caesarean section, allegedly without evidence that EFM has reduced the incidence of cerebral palsy (CP),” Halpern adds. “Carried to extremes, it could be argued that no monitoring at all would reduce the Caesarean section rates even further, without a measurable effect on CP rates – reductio ad absurdum.”

Causation should be a priority

He also questions why the guideline does not adequately reflect the current understanding on causation, which is determining how and when the babies get hurt.

“Neuroimaging, which involves a head ultrasound, CT scan and a MRI, can tell us within a window of weeks and sometimes hours when the baby was hurt,” Halpern says. “That is critically important, but it is something the SOGC has completely ignored in this guideline.”

He explains that decades ago it was assumed that birth asphyxia, a condition resulting from a fetus being deprived of oxygen long enough to cause brain injury, mainly occurred during delivery.

Modern neuroimaging techniques and equipment, according to Halpern, allow doctors to determine when and how babies are injured with much more precision, bringing into question much of the older data that suggests otherwise.

The American College of Obstetricians and Gynecologists has recognized the importance of neuroimaging in determining the cause and timing of injury, yet the new SOGC guideline is silent on the issue.

“The best defence to a medico-legal claim are good guidelines and avoiding these outcomes,” Halpern says.

Rare condition still too common 

Noting that birth asphyxia is a relatively rare condition, he says the number of affected babies is still significant in absolute terms. There are likely more babies affected than the obstetrical community will acknowledge, he adds, so more has to be done to reduce that number.

“How many of those injuries could have been avoided?” Halpern asks. “Though it is still rare, it creates a terrible burden on affected families, as well as the legal and medical systems.

“A better understanding of how and when birth asphyxia occurs should inform the fetal surveillance guideline, as that would lead to fewer brain-injured newborns”.

“My critique of the new SOGC guidelines is unlikely to see widespread support from the obstetrical community, most of whom are members of the SOGC, and therefore are reluctant to be critical of the guideline,” Halpern says. “Having said that, further dialogue about the concerns I raise will, in my view, lead to more effective guidelines”.

Though he earns an income representing parents coping with the effects of birth asphyxia, he says he would prefer to see this condition minimized as much as possible.

“It is important for someone to take a stand on this issue,” Halpern says. “While the obstetrical community disagrees with what I have to say, these are important issues that should be raised, for the benefit of the children.”