Cerebral Palsy Claims: What Hospitals Should be Doing

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If your child has cerebral palsy, you’ve likely gone through the scenarios a million times of how her brain damage could have been prevented. Perhaps it was related to a genetic mutation, which you couldn’t have known, or perhaps it was due to a birth injury. Maybe the doctor team didn’t perform a C-section soon enough and she lost oxygen to her brain or she suffered from severe jaundice after birth, which became acquired cerebral palsy. You may be stuck still wondering what you could have done to prevent it. But what could hospitals have done to help?

A recent report, titled “5 Years of Cerebral Palsy Claims,” dives into data from NHS Resolution, which handles compensation claims for cerebral palsy in the UK. Sadly, the most serious errors in maternal care have not changed in over two decades.

We’ll take a look at they key findings in the report and how they can apply to us here in the United States.

1 in 6 Cerebral Palsy Cases are Due to Medical Error

Nearly 300 cerebral palsy and neonatal brain injury claims were examined between 2012 and 2016, in which 50 were admitted to be due to medical errors or negligence and thus analyzed. Financial liability for these claims was expected to be nearly $524 million in U.S. dollars, excluding costs of defense attorneys and wider healthcare costs to the NHS.

The NHS claims it is the “safest healthcare system out of 11 western countries” — so that’s something to be said for any U.S. cases, of which Safe Birth Project could not find a comparable analysis of recent cerebral palsy claims.

“Possibly the most devastating and undoubtedly the most expensive, are claims for avoidable cerebral palsy, the number of which has remained relatively static over the last ten years,” the NHS Resolution analysis states.

NHS Resolution expects to pay out $87.3 billion today and in the future for clinical negligence claims. The main reason for the report was to reduce harm and provide learning opportunities for doctors.

The following are the main areas of concern with cerebral palsy claims, areas of improvement, and the expenses involved.

Cerebral Palsy Claims: Areas of Concern

NHS Resolution identified three main areas of concern:

• Lack of family involvement and staff support through the claim investigation process;
• Medical claim analysis was poor and focused too heavily on individuals;
• Due to poor report quality, the recommendations were unlikely to reduce the incidence of future harm.

We’ll go into more of these below.

Family Involvement

According to NHS Resolution, women and their families are not involved enough in serious incident investigations. Active involvement includes:

• Being given an individualized (and sincere) apology for the harm that’s occurred
• Being made aware an investigation will take place
• Being encouraged to provide an account of events
• Being able to read and comment on the draft report, which is written without jargon in a way they can understand
• Being able to read the final report and given the opportunity to discuss the findings

Sixty percent of investigations did not involve the parents.

Medical Claim Analysis

Of the 50 claims analyzed by NHS Resolution, 41 claims used what’s called a Root Cause Analysis (RCA), which is a structured look at understanding what, how, and why a system failed. However, the focus of many RCAs was on the individuals involved in the claim rather than the systems used. Individual skill level and poor (lack of) communication were the most common contributing factors listed in RCAs.

In addition to the low amount of parental involvement in investigations, only 32% of investigations included an obstetrician, midwife, and neonatologist, while just 4% of cases had an external review.

Simply put, investigators do not have enough training on serious incidents. NHS Resolution suggests creating a standardized and accredited training program to reduce variances in investigations and improve quality. External or independent peer review also should be required.

Incidences of Future Harm

During an investigation, emotional support should be given to hospital staff. After patients and their families, staff are considered “second victims” and can experience depression, guilt, anger, fear, anxiety, and insomnia.

“A lack of support and supervision has been identified as a key reason why 1 in 5 UK obstetric and gynaecology specialist trainees leave the profession before completing their training.”

This certainly doesn’t bode well for preventing incidences of future harm, or setting our hospitals up with trained and happy staff members who can help prevent negligence.

Cerebral Palsy Claims: Areas of Improvement

Areas of improvement that NHS Resolution recommends include fetal heart rate monitoring, breech birth, staff competency and training, and patient autonomy.

Fetal heart rate monitoring

Errors with fetal heart rate monitoring were the most common theme in cerebral palsy cases, present in 32 of 50 claims. Most of these involved a cardiotocograph (CTG). The errors ranged from CTGs being misinterpreted, not started when they should have been, being too slow to act once the CTG was identified as pathological, false reassurance with an uninterpretable trace, and problems monitoring the mother’s heart rate.

Fetal heart rate monitoring is often an area where medical workers have the least training. Per NHS Resolution:

“Cardiotocograph interpretation should not occur in isolation. It should always occur as part of a holistic assessment of fetal and maternal wellbeing. CTG training should incorporate risk stratification, timely escalation of concerns and the detection and treatment of the deteriorating mother and baby.”

However, fetal heart rate monitoring remains controversial. Those with high-risk pregnancies, such as preeclampsia, preterm birth, and type 1 diabetes, should be monitored with electronic fetal monitoring while those with low-risk pregnancies can use intermittent auscultation.

See also: Baby’s Heart Rate: What it Means for Brain Injuries

Breech birth

Compared to the national average (3-4%), this set of 50 claims had more breech births (12%). Several of these cases involved women in advanced labor with an undiagnosed breech birth.

“This review highlights that unplanned breech deliveries are over represented in high value claims for cerebral palsy and that delivery was often by a registrar, out of hours, without a consultant present. This review cannot comment on the skills of those individuals but it is likely that current obstetric trainees have less experience of vaginal breech birth than in the past.”

NHS Resolution suggests simulated breech birth training to improve response and skills in obstetric emergencies.

Staff competency and training

Investigators found that in 29 of the 50 cerebral palsy claims, medical staff needed further training. Serious investigation analyses continued to focus on individual error and competence rather than systemic faults or organization error.

The training frequently recommended however was not a new need, but a lapse. In one case, a neonatal staffer had not completed their mandatory resuscitation training, resulting in the error, and had still been allowed to work. In two other cases, medical staff performed breech deliveries but had no training in them.

Breech deliveries can not only lead to the brain damage that causes cerebral palsy, if baby gets stuck in the birth canal for too long, but also brachial plexus injuries and nerve damage.

“There is evidence that local, multi-professional training where 100% of staff must attend can decrease the rate of brachial plexus injuries, low APGARS, HIE (electronic health information exchange), and compensation costs.”

See also: Moro Reflex and Apgar Score: Baby’s First Tests

Patient autonomy

A lack of informed consent was evident in all claims. For example, a woman who wanted to deliver vaginally after Cesarean section was not given enough information about her condition, in which her initial C-section resulted in a J-shaped incision on the uterus that could increase the risk of uterine rupture. In another case, a woman who had a previous shoulder dystocia had a macrosomic (overweight) baby in this pregnancy, but her option of elective C-section was not discussed with her.

A more educated patient, in addition to educated medical staff, will result in fewer medical errors.

Bottom Line: Cerebral Palsy is Costly for All Involved

In the OB-GYN field, the most expensive claims are those for cerebral palsy. The financial cost of cerebral palsy in the UK has increased by 81% since 2004, despite the amount of claims remaining relatively static. Children with cerebral palsy may be living longer, and their costs for treatment and care may be higher. In the U.S. alone, the average lifetime cost of cerebral palsy is $1.24 million per person today, and only going up.

Courts, fortunately, are allowing greater recoverability of damages in these cases. In the U.S., the birth injury team at Safe Birth Project can help you and your family recover damages in a cerebral palsy claim. Learn more about how cerebral palsy lawsuits work by taking a look at our Legal Issues page, or contact us today for a free case review.