Over the past half century, one medical malpractice claim – birth-related cerebral palsy (CP) – has had a major impact on obstetric care, resulting in defensive practices to prevent litigation, and in South Africa particularly, pushing negligence claims to unprecedented levels and almost bankrupting municipalities countrywide.
Now, notes MedicalBrief, an extensive review has concluded that in low-resource/income settings, very different strategies should be employed for determining diagnosis and any possible causal links in relation to subsequent medico-legal factors.
Litigation involving cerebral palsy has arguably the highest quantum claims, resulting in skyrocketing insurance premiums for obstetricians, placing service delivery under serious threat, a review in the South African Medical Journal notes.
The phenomenon is not restricted to high-income settings, with its impact in South Africa being enormous.
A 2021 study by the Actuarial Society of SA found that nearly 40% of all successful medical malpractice claims against provincial Health Departments were for medical negligence that resulted in cerebral palsy.
This is in keeping with earlier findings. In 2017/2018, for example, successful claims for cerebral palsy cases accounted for 50% of all medical malpractice cases in Gauteng.
In 2016, R769m was paid out cerebral palsy suits arising from medical negligence. The largest pay outs were for cases registered at Chris Hani Baragwanath Hospital, but evidence of poor perinatal care has been reported across the country.
In one case, the Supreme Court of Appeal ordered a gynaecologist and the KwaZulu-Natal hospital where he worked to pay R20m for failing to act timeously to deliver a baby, resulting in cerebral palsy. This case took a decade to be resolved.
Litigants implicate an adverse event at birth in causation of CP, with the suggestion that the outcome could have been prevented by better intrapartum care.
In a recent collaborative project by the Universities of KwaZulu-Natal, Witwatersrand, Pretoria and Stellenbosch, researchers aimed to establish causality for intrapartum hypoxia in low-resource settings and to present a more tailored and appropriate approach. Their findings were published in the SA Medical Journal.
They performed an extensive search of research articles, randomised controlled trials, observational studies, case reports or expert or consensus statements pertaining to CP in low-resource settings, medico-legal implications, causality, and criteria implicating intrapartum hypoxia.
Electronic search strategies included the MEDLINE, Embase, Cochrane Library and PubMed databases from 1990 to the present, with languages other than English also being included.
They selected 21 relevant papers, with CP and medico-legal implications in high-resource settings being excluded.
They found that just 10%-14% of cerebral palsy cases are caused by term or near-term intrapartum hypoxia in high-income countries, with epidemiological studies in these settings showing most cases are unrelated to this.
The extent and role of antenatal factors in causation of CP in low-resource settings, however, is not well understood, with the figures differing vastly.
The higher numbers of children with spastic quadriplegia (a form of CP associated with intrapartum hypoxic-ischaemic injury) in African countries and in other low-resource settings suggest a greater role for intrapartum complications than is the case in high-income countries, said the researchers.
CP also occurs more frequently in low-income countries, which could be due to factors affecting foetal and postnatal brain development, e.g. preterm birth, intrauterine growth restriction, obstetric complications, birth asphyxia, neonatal jaundice and cerebral infections.
The associated mortality linked to these conditions is likely to affect the reported prevalence of CP: overall, in low-income countries, the prevalence varies from two to 10 per 1 000 live births, while in higher-income countries, the prevalence is 1.8 – 2.3 per 1 000 live births.[
In low-resource settings, so-called perinatal asphyxia is implicated as the aetiological factor in 20%-46% of cases of CP based on studies from Nigeria, North India and Tanzania.
Data from a large referral hospital in SA showed a birth asphyxia incidence of 8.7 – 15.2 per 1 000 live births, higher than the HIC incidence of 1-5 per 1 000 live births.
The National Collaborative Perinatal Project study noted that the risk of CP is increased by the presence of abnormal neurological signs in the neonatal period, most notably poor respiratory effort, subnormal level of consciousness, seizures and inability to suck, which indicate the syndrome of neonatal encephalopathy (NE).
The American College of Obstetricians and Gynaecologists (ACOG) defines NE as a disturbance in neurological function in the earliest days of life in an infant born at ≥35 weeks of gestation, manifested by a subnormal level of consciousness or seizures, and often accompanied by depression of tone and reflexes.
NE is often assumed to be the consequence of hypoxic-ischaemic brain damage, yet it can occur in the absence of markers of intrapartum hypoxia, and may even have a closer relationship to pre-labour events.
Furthermore, NE could be due to factors other than hypoxia-ischaemia, especially infections, which are more common in low-resource settings.
The ACOG has recommended that confirmed cases of NE with Apgar scores <5 at 5 and 10 minutes, foetal umbilical artery acidaemia (pH <7.0 or base deficit ≥12 mmol/L), presence of multisystem organ failure and neuroimaging evidence of acute brain injury on MRI (done in the neonatal period <3 weeks after delivery) will determine the likelihood that an acute peripartum or intrapartum event was a contributor to the development of NE.
The ACOG highlights that the first mandatory step in an assessment of NE is to confirm whether a specific infant meets the case definition, and that this must be based on reliable and accurate observations made by trained staff.
One of the signs of NE is seizures, which might present as sucking movements and pedalling of limbs. These movements can also be normal for newborns, and their diagnosis is improved by use of the electroencephalogram.
In low-resource settings, assessment of newborns is often performed by junior staff in facilities where there is limited equipment available to confirm seizures and monitor cerebral function. Infants may therefore be labelled as having seizures, with resulting overdiagnosis of NE.
In our experience, lawyers often use this diagnosis made by junior doctors to implicate intrapartum hypoxia as a contributor to CP. Other criteria to implicate intrapartum injury, namely umbilical artery pH, presence of multi-system organ failure, neuroimaging and placental histology, require laboratory testing and specialised equipment that are often not available in low-resource settings.
Along the same lines, exclusion of other causes of NE such as infection requires lumbar puncture, blood cultures and other blood tests, which may also not be available.
A diagnosis of NE being due to an intrapartum event as recommended by the ACOG therefore poses a major challenge in low-resource settings.
We therefore contend that, in low-resource settings, modalities recommended by the ACOG 2014 guidelines to diagnose intrapartum hypoxia as causative of NE often do not realistically apply. These deficiencies complicate the process of determining causation.
Courts therefore need to rely on maternal accounts, limited clinical records, CTGs (if done and available) and childhood MRI reports, with the benefit of hindsight, to reconstruct events surrounding the birth. Individual modalities like the CTG and MRI should not be considered in isolation.
A systematic approach to make best use of the limited available information is needed. We suggest revised criteria in an algorithm for low-resource settings to implicate intrapartum hypoxia in CP/NE.
The algorithm relies first on specialist neurological assessment of the child, determination of the occurrence of NE (by documented or verbal accounts) and findings on childhood MRI, and second on evidence of antepartum and intrapartum contributors to the apparent hypoxia-related CP.
Conclusion
In low-resource settings, expert medical evidence in CP litigation requires a context-appropriate and focused approach to the question of criteria implicating intrapartum hypoxia in causation. Our review explored differences between low-resource settings and HICs in trying to establish causation in NE/CP and the need to present a different approach, one that would be crucial for reaching fair and correct judgments in a legal setting.
There is a dearth of data on CP, its causation and its medico-legal implications in low-resource settings, requiring new focus in these areas to devise strategies in dealing with this condition, especially in the medico-legal setting.
Study details
Cerebral palsy and its medico-legal implications in low-resource settings – the need to establish causality and revise criteria to implicate intrapartum hypoxia: A narrative review
I Bhorat, E Buchmann, P Soma-Pillay, E Nicolaou, L Pistorius, I Smuts, S Velaphi.
Published in the SA Medical Journal
The objective of this study was to establish scientific causality and to devise criteria to implicate intrapartum hypoxia in cerebral palsy (CP) in low-resource settings, where there is potential for an increase in damaging medico-legal claims against obstetric caregivers, as is currently the situation in South Africa. For the purposes of this narrative review, an extensive literature search was performed, including any research articles, randomised controlled trials, observational studies, case reports or expert or consensus statements pertaining to CP in low-resource settings, medico-legal implications, causality, and criteria implicating intrapartum hypoxia. In terms of causation, there are differences between high-income countries (HICs) and low-resource settings.
While intrapartum hypoxia accounts for 10%-14% of CP in HICs, the figure is higher in low-resource settings (20%-46%), indicating a need for improved intrapartum care.
Criteria implicating intrapartum hypoxia presented for HICs may not apply to low-resource settings, as cord blood pH testing, neonatal brain magnetic resonance imaging (MRI) and placental histology are frequently not available, compounded by incomplete clinical notes and missing cardiotocography tracings. Revised criteria in an algorithm for low-resource settings to implicate intrapartum hypoxia in neonatal encephalopathy (NE)/CP are presented. The algorithm relies first on specialist neurological assessment of the child, determination of the occurrence of neonatal encephalopathy (by documented or verbal accounts) and findings on childhood MRI, and second on evidence of antepartum and intrapartum contributors to the apparent hypoxia-related CP.
The review explores differences between low-resource settings and HICs in trying to establish causation in NE/CP and presents a revised scientific approach to causality in the context of low-resource settings for reaching appropriate legal judgments.
See more from MedicalBrief archives:
State liable for child’s cerebral palsy after Bara birth 17 years ago
Department to pay after lawyers' blunder in cerebral palsy appeal case
Cerebral palsy causality: A quick fix to reduce medical negligence payouts