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Professional Liability

More strategies to avoid malpractice hazards on labor and delivery

4 problematic L & D cases: Occasions for the authors to talk about keeping clear of charges that you are the cause of injury during birth

January 2011 · Vol. 23, No. 1



Sound strategies to avoid malpractice hazards on labor and delivery
Martin L. Gimovsky, MD, and Alexis C. Gimovsky, MD

CASE 1: Pregestational diabetes, large baby, birth injury

A 31-year-old gravida 1 is admitted to labor and delivery. She is at 39-5/7 weeks’ gestation, dated by last menstrual period and early sonogram. The woman is a pregestational diabetic and uses insulin to control her blood glucose level.

Three weeks before admission, ultrasonography (US) revealed an estimated fetal weight of 3,650 g—at the 71st percentile for gestational age.

After an unremarkable course of labor, delivery is complicated by severe shoulder dystocia. The newborn has a birth weight of 4,985 g and sustains an Erb’s palsy-type injury. The mother develops a rectovaginal fistula after a fourth-degree tear.

In the first part of this article, we discussed how an allegation of malpractice can arise because of an unexpected event or outcome for a mother in your care, or her baby, apart from any specific clinical action you undertook. We offered an example: Counseling that you provide about options for prenatal care that falls short of full understanding by the patient.

In this article, we enter the realm of the hands-on practice of medicine and discuss causation: namely, the actions of a physician, in the course of managing labor and delivering a baby, that put that physician at risk of a charge of malpractice because the medical care 1) is inconsistent with current medical practice and thus 2) harmed mother or newborn.

Let’s return to the opening case above and discuss key considerations for the physician. Three more cases follow that, with analysis and recommendations.

Considerations in CASE 1

  • A woman who has pregestational diabetes should receive ongoing counseling about the risks of fetal anomalies, macrosomia, and problems in the neonatal period. Be certain that she understands that these risks can be ameliorated, but not eliminated, with careful blood glucose control.
  • The fetus of a diabetic gravida develops a relative decrease in the ratio of head circumference-to-abdominal circumference that predisposes it to shoulder dystocia. Cesarean delivery can decrease, but not eliminate, the risk of traumatic birth injury in a diabetic mother. (Of course, cesarean delivery will, on its own, substantially increase the risk of maternal morbidity—including at any subsequent cesarean delivery.)

What do they mean? terms and concepts intended to bolster your work and protect you

It’s not easy to define what constitutes “best care” in a given clinical circumstance. Generalizations are useful, but they may possess an inherent weakness: “Best practices,” “evidence-based care,” “standardization of care,” and “uniformity of care” usually apply more usefully to populations than individuals.

Such concepts derive from broader applications in economics, politics, and science. They are useful to define a reasonable spectrum of anticipated practices, and they certainly have an expanding role in the care of patients and in medical education (TABLE). Clinical guidelines serve as strategies that may be very helpful to the clinician. All of us understand and implement appropriate care in the great majority of clinical scenarios, but none of us are, or can be, expert in all situations. Referencing and using guidelines can fill a need for a functional starting point when expertise is lacking or falls short.

Best practices result from evidence-directed decision-making. This concept logically yields a desirable uniformity of practice. Although we all believe that our experience is our best teacher, we may best serve patients if we sample knowledge and wisdom from controlled clinical trials and from the experiences of others. What is accepted local practice must also be considered important when you devise a plan of care.1,2

A selected glossary of clinical care guidelines


What does it mean?

“Best practice”

A process or activity that is believed to be more effective at delivering a particular outcome than any other when applied to a particular condition or circumstance. The idea? With proper processes, checks, and testing, a desired outcome can be delivered with fewer problems and unforeseen complications than otherwise possible.5

“Evidence-based care”

The best available process or activity arising from both 1) individual expertise and 2) best external evidence derived from systematic research.6

“Standard of care”

A clinical practice to maximize success and minimize risk, applied to professional decision-making.7

“Uniformity of practice”

Use of systematic, literature-based research findings to develop an approach that is efficacious and safe; that maximizes benefit; and that minimizes risk.8

Consider the management of breech presentation that is recognized at the 36th week antepartum visit: Discussion with the patient should include 1) reference to concerns with congenital anomalies and genetic syndromes, 2) in-utero growth and development, and 3) the delivery process. The management algorithm may include external cephalic version, elective cesarean delivery before onset of labor, or cesarean delivery after onset of labor. Each approach has advocates—based on expert opinion clinical trials.

Management options may vary from institution to institution, however, because of limited availability of certain services—such as the expertise required for a trial of external cephalic version, the availability of on-site cesarean delivery capabilities, and patient and clinician preferences.

Uniformity of care, based on best practices, can therefore simplify the care process and decrease the risk that may be associated with individual experience-based management. Adhering to a uniform practice augments the clinician’s knowledge and allows for enhanced nursing and therapeutic efficiency.

The greatest benefit of using an evidence-based, widely accepted approach, however, is the potential to diminish poor practice and consequent malpractice exposure for both clinicians and the hospital.

Note: Although your adherence to clinical guidelines, best practices, and uniformity of care ought to be consistent with established standards of care, don’t automatically consider any deviation a lapse or failing because it’s understood and accepted that some local variability exists in practice.

Prelude to birth: triage and admission Triage. Most women in labor arrive at the hospital or birthing center to an area set aside for labor and delivery triage. There, 1) recording of the chief complaint and vital signs and 2) completion of a brief history and physical generate a call to the clinician.

The record produced in triage should be scrutinized carefully for accuracy. Clarify, in as timely a manner as possible, any errors in:

  • timing (possibly because of different clocks set to different times)
  • the precise capture of the chief complaint
  • reporting difficulty or ease in reaching the responsible clinician.

Whether these records are electronic or paper, an addendum marked with the time is always acceptable. Never attempt to correct a record! Always utilize a late entry or addendum.

Admission. After the patient is admitted, she generally undergoes an admission protocol, specific to the hospital, regarding her situation. This includes:

  • the history
  • special requests
  • any previously agreed-on plan of care
  • any problems that have developed since her last prenatal visit.

This protocol is generally completed by a nurse, resident, nurse practitioner, or physician assistant.

Hospitals generally request input from the attending physician on the specifics of the admission, based on those hospital protocols. There may be some room to individualize the admission process to labor and delivery.

4 pillars of care during labor

In general, labor is defined as progressive dilation of the cervix. Several parameters serve as guidelines regarding adequate progress through the various stages of labor.

Fetal monitoring. Continuous evaluation of the fetus during labor is a routine part of intrapartum care. Recording and observing the FHR tracing is an accepted—and expected—practice. Documentation of the FHR in the medical record is specifically required, and should include both the physician’s and nursing notes.

Anesthesia care. The patient’s preference and the availability of options allows for several accepted practices regarding anesthesia and analgesia during L & D. Does she want epidural anesthesia during labor, for example? Intravenous narcotics? Her choice is an important facet of your provision of care.

However, such choice requires the patient to give consent and to understand the risk-benefit equation. Documentation by nursing of the patient’s consent and understanding should be complete, including discussion and administration. Anesthesia staff should be clear, complete, and legible in making a record.

Neonatal care. If logistics permit, a member of the pediatrics service should be routinely available to see the newborn at delivery. The patient should view the pediatrician and obstetrician as partners working as a team for the benefit of the mother and her family. This can enhance the patient’s understanding and confidence about the well being of her baby.

Documentation. Although deficient documentation does not, itself, lead to a finding of malpractice, appropriate documentation plays an important role in demonstrating that clinical practices have addressed issues about both allegation and causation of potential adverse outcomes.

We cannot overemphasize that nursing documentation should complement and be consistent with notes made by the physician. That said, nursing notes are not a substitute for the physician’s notes. Practices that integrate the written comments of nursing and physician into a single set of progress notes facilitate this complementary interaction.

3 more clinical scenarios

CASE 2: Admitted at term with contractions

The initial exam determines that this 21-year-old gravida 1 is 2/80/-1. Re-examination in 3 hours finds her at 3-4/80/0.

She requests pain relief and states that she wants epidural anesthesia.

Evaluation 2 hours later suggests secondary arrest of dilation. Oxytocin is begun.

Soon after, late decelerations are observed on the FHR monitor.

Use of exogenous oxytocin in L & D is a double-edged sword: The drug can enhance the safety and efficacy of labor and delivery for mother and fetus, but using it in an unregulated manner (in terms of its indication and administration) can subject both to increased risk.

In fact, it is fair to say that the most widespread and potentially dangerous intervention during labor is the administration of oxytocin. Many expert opinions, guidelines, and strategies have been put forward about intrapartum use of oxytocin. These include consideration of:

  • indications
  • dosage (including the maximum)
  • interval
  • fetal response
  • ultimately, the availability of a physician during administration to manage any problem that arises.

Considerations in CASE 2

  • Always clearly indicate the reason for using oxytocin: Is this an induction? Or an augmentation? Was there evidence of fetal well-being, or non-reassurance, before oxytocin was administered? Certainly, there are circumstances in which either fetal status or non-progression of labor (or both) are an indication for oxytocin. A clear, concise, and properly timed progress note is always appropriate under these circumstances.
  • Discuss treatment with the patient. Does she understand why this therapy is being recommended? Does she agree to its use? And does she understand what the alternatives are?
  • Verify that nursing has accurately charted this process. Ensure that the nursing staff’s notes are complete and are consistent with yours.
  • Simplify the entire process: Use premixed solution and protocol-driven orders. Know what the standards and protocols are in your department. Minimizing patient-to-patient variability should lessen the risk of error.
  • Always be available in L & D for the first 30 minutes that oxytocin is being administered. If a problem with excessive uterine activity is going to occur, it is most likely to do so upon initial administration.
  • Monitor the FHR continuously. At the first suggestion of a change in fetal status, discontinue oxytocin. Perform a pelvic exam to reassess the situation. Understand and apply appropriate inutero resuscitative measures (IV fluids, O2, change in maternal position). Depending on circumstances, you can consider a restart of oxytocin after the FHR returns to its pre-oxytocin pattern.
  • Monitor uterine response to oxytocin. If the membranes are ruptured and if it is clinically feasible, an intrauterine pressure transducer will allow you to more objectively assess the uterine response to oxytocin and make decisions on that basis. Determine beforehand whether the patient is agreeable to this intervention.
  • When oxytocin is used for augmentation, reassess labor within 4 hours of achieving a satisfactory pattern. If minimal progress is not made, assess the clinical situation to determine why oxytocin, at an adequate response level, has failed to return labor to a normal active phase slope. Are there minor degrees of malposition? Is there an element of cephalopelvic disproportion? Recall that progress in labor is dependent on multiple factors.
  • Chart the process concurrently. Specify options for delivery before delivery.