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| Finding fault |
20-Sep-2006 |
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Cerebral palsy cases are still the main reason for high medical insurance costs, despite growing evidence the condition may not always be caused by negligence.
By Heather
Ferguson
.
A GROWING body of evidence that a doctor’s management of labour may have nothing to do with most cerebral palsy cases is having little impact on the number of doctors being sued.
Lawyers admit it takes time for new medical evidence to flow through to expert evidence in medical negligence cases.
In the meantime, medical defence organisations still pay huge awards for cerebral palsy cases, which can account for 30-50% of the total cost of medical negligence claims in Australia each year.
In Victoria, there has been an increase in cases, partly caused by the claims spike in response to tort law reforms. A moderately to severely affected infant typically receives $3.5 million to $5 million plus costs, while in NSW the average payout is about $7 million.
Earlier this month in Brisbane the Supreme Court awarded a 10-year-old boy with cerebral palsy almost $5.4 million. The boy went into fetal cardiac arrest during his birth at ToowoombaBaseHospital, causing brain damage. The State of Queensland admitted liability on behalf of the hospital and staff, but argued about the assessment of damages.
Even when the merits of the case are uncertain — when there is evidence of negligence but it’s difficult to establish that the doctor’s actions caused the cerebral palsy — payouts can be $1 million to $3 million, says Ms Lisa Clarke, Medical Defence Association of Victoria claims underwriting manager.
It may become easier to identify the causes of cerebral palsy in the future, with teams such as the SA Cerebral Palsy Group, based at Adelaide’s Women’s and Children’s Hospital, investigating causes that may be genetic or caused during pregnancy.
The SA group has identified several often silent antenatal risk factors for cerebral palsy, including viral infections, cytokine genetic mutations that make the fetus vulnerable to infection, and hereditary clotting disorders that increase the risk of fetal stroke.
The group has discovered that the risk of cerebral palsy is almost doubled with exposure to the herpes B group virus.
Group director Professor Alastair MacLennan, professor of obstetrics and gynaecology at the University of Adelaide, estimates the first three factors together are responsible for 32% of cases of cerebral palsy — and more risk factors are being uncovered.
“It’s a common misunderstanding — just because a baby is sick at birth does not mean it only got sick in the last hour,” he says.
But these discoveries are yet to have an impact on cerebral palsy litigation, most of which is settled out of court.
Ms Clarke says expert witness reports have not referred to viral infections as a possible cause of cerebral palsy, except in fairly broad terms. “[But] as further evidence comes to light, these are likely to be increasingly referred to by expert witnesses as a possible explanation for cerebral palsy of otherwise unknown cause,” she says.
Ms Clarke says it can take some time for a new theory to become accepted into mainstream medicine and it takes even longer for this acceptance to flow through into expert evidence relating to medical negligence cases.
“Part of the problem is also the fact that some of the leading experts in emerging areas of medicine are reluctant to provide medicolegal opinions because of the time commitment out of their normal practice which this can entail,” she says.
Professor David Ellwood, professor of obstetrics and gynaecology at the Australian National University, says another complicating factor is the lack of evidence to support a link between the risk factors identified by the SA group and a child’s cerebral palsy.
“The problem with viral infections in pregnancy is there may be no evidence of it which is going to be accepted by the court unless you can look at the baby’s brain under the microscope,” he says.
That is clearly not an option, but research is under way to determine whether viral infections can be detected in the placenta, Professor Ellwood says. Depending on the results of this work, it may become routine to store placenta samples at birth.
He says while herpes B group viruses theoretically can be detected from the Guthrie card kept on all newborns, the research is too new for lawyers to start ordering DNA sampling to aid a doctor’s defence.
But Dr Andrew Pesce, chairman of the AMA’s medical indemnity taskforce, predicts that, with increasing knowledge of the factors that cause cerebral palsy, doctors will order more tests in pregnancy to pick up CMV and other viral infections. In turn, this could result in more cases being attributed to these causes “and less people accessing the tort system”.
While the role of viral infections and other new risk factors may take time to become established, in some states there have been some positive developments in terms of cerebral palsy litigation.
Dr Megan Kearney, national claims manager at United Medical Protection, does not anticipate the latest research will have much impact on the cost of claims or premiums.
“Plaintiff lawyers are sophisticated enough to know if the primary cause of cerebral palsy has nothing to do with management decisions by the obstetrician or GP obstetrician,” Dr Kearney says.
“The causation in the cases I see relies on good-quality expert evidence demonstrating an intrapartum event caused by poor care.”
She says tort law reforms in NSW have reduced the number of cerebral palsy claims, but these claims remain responsible for most catastrophic claims costs.
Plaintiff lawyer Mr Bill Madden, a partner at Slater and Gordon and spokesman for the Australian Lawyers Alliance professional negligence special interest group, says there is no suggestion from plaintiff lawyers that all cases of cerebral palsy are the result of birth trauma. He says he investigates all possible causes of cerebral palsy in cases brought to him, including maternal infections.
“I would probably investigate four cerebral cases for every one that goes forward,” he says.
But this is not good enough for Professor MacLennan, who is the Royal Australian and New Zealand College of Obstetricians and Gynaecologists spokesman on cerebral palsy.
He wants each state to introduce legislation to make cerebral palsy a no-fault condition and for money spent defending cerebral palsy claims to be redirected into disability support programs for all neurologically affected children. As well as the new risk factors his group has uncovered, Professor MacLennan says less than 1% of cerebral palsy cases are related to intra-partum hypoxia.
He says no obstetric intervention — increased caesarean rates, induction of labour, electronic fetal monitoring or better resuscitation — has reduced the incidence of cerebral palsy in recent years.
“There’s no reason why obstetricians and midwives should be a de facto welfare system,” he says. “Most people who are litigated for cerebral palsy never practise obstetrics again.”
Mr Madden says the fact that the incidence of cerebral palsy has not changed despite higher levels of intervention does not support Professor MacLennan’s claim that doctors are being unfairly blamed for cerebral palsy.
“You really have to look behind the data,” he says. “There is more cerebral palsy because there are more premature babies.”
There is universal support for a long-term care scheme among medical defence organisations and the medical profession for all catastrophically injured patients, not just children with neurological defects.
Ms Clarke says such a scheme may help eliminate some speculative claims that are brought because there is no other avenue for the child’s parents to provide for their future needs. “[It] would certainly reduce the pressure on the legal system to find negligence in order that patients can receive sufficient damages to cater for their future needs,” she says.
But this would not necessarily remove the patient’s right to sue for general damages, she says.
Dr Pesce agrees a no-fault system does not mean negligent doctors would get off “scot-free”. In addition to being sued for pain and suffering, negligent doctors could also “be hauled before the disciplinary tribunal”, he says.
However, plans for a long-term care scheme have stalled. The Federal Government has made it clear it is up to state governments to implement a statutory scheme.
Dr Pesce says it is now up to advocates and carers of affected patients to persuade governments that, while there may be teething problems, a long-term care scheme is “a very important social objective”.
In the absence of a long-term care scheme, Dr Pesce says cerebral palsy can’t become a no-fault outcome.
“It would be politically untenable to take away the rights people have [under the tort system] unless you replace it with something else,” he says.
Dr Kearney says while there is a lot of interest in a care scheme for patients with catastrophic injuries, the legal fraternity does not support a no-fault scheme. Such a scheme would have an impact on insurance premiums paid by doctors, with obstetricians currently paying about $100,000 a year. However, Dr Kearney says doctors are already benefiting from premium subsidies, with the Federal Government picking up 50% of the cost of claims of more than $300,000.
She says doctors should be wary of a push for a no-fault scheme.
For example, it would be unreasonable for a doctor who ignored signs of an impending uterine rupture to escape repercussions by making cerebral palsy a no-fault outcome, she says.
“In our current system we have a responsibility to deal with the plaintiff fairly and to make sure people are properly compensated,” Dr Kearney says.
REDUCING RISK
WITH fewer GPs practising obstetrics, the number of cerebral palsy claims relating to intra-partum GP care is also falling.
“Historically, we have had as many as two cerebral palsy claims involving a GP in any one year,” says Ms Lisa Clarke, Medical Defence Association of Victoria claims underwriting manager.
However, in recent years the average number of obstetrically based cerebral palsy claims against GPs seen by MDAV in a year is less than one claim a year.
Ms Clarke says the major GP exposure for cerebral palsy claims now relates to antenatal care. Some of the risks GPs should be aware of include:
* Identification of high-risk pregnancies and referral to an obstetrician/obstetric outpatient clinic for management.
* Ensuring that proper antenatal screening and diagnostic tests are performed if managing a pregnancy.
* Diagnosis and appropriate management/referral of pregnancy complications: pre-eclampsia, gestational diabetes, premature rupture of membranes or labour, and antenatal maternal infections that may affect the fetus.
* Proper management of pre-pregnancy counselling and testing, including rubella antibody level testing.
* Communication of abnormal test results to the patient, and communication of options if already pregnant.
VARYING VIEWS
PROFESSOR David Ellwood provides expert opinion on 15-20 cerebral palsy cases each year. He says in some of those cases it is obvious the doctor’s negligence is responsible for the child’s cerebral palsy.
“There are cases where it was fairly obvious there was a failure to recognise hypoxic changes … or that it has gone on for a long period of time before any action was taken,” he says.
However, Professor Ellwood says several cases have settled where he did not believe the doctor had been negligent, decisions he says are commercially driven. It can be cheaper to settle a case rather than risk a damages award of $10 million in the courts.
It’s a situation that is not helped by the varying opinions provided by expert witnesses.
Dr Megan Kearney, of United Medical Protection, says the level of expert evidence can be “woeful” in many areas of practice.
She describes one case in which an obstetrician advised a plaintiff and her lawyer they had an excellent case only for it to be revealed in court that the obstetrician had been struck off the medical registrar. While the GP who was being sued was ultimately absolved of liability, they had to endure months of unnecessary stress.
“The courts are very concerned about the quality of expert witnesses,” Dr Kearney says.
TOO SOON FOR VIRAL DEFENCE
THERE are two cerebral palsy cases awaiting judgment in the NSW Supreme Court but the doctors involved would not have benefited from recent investigations into its cause.
In one case a retired GP obstetrician, now aged over 80, was sued for failing to prevent a premature birth that caused the plaintiff’s cerebral palsy. United Medical Protection defended the claim on behalf of the GP and the estate of a second GP obstetrician involved in the patient’s care.
The second case, involving a specialist obstetrician, centred on a ruptured uterus and was also defended by United.
Both cases relate to births in the early 1980s.
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