A hospital put up a special maternity package to encourage mothers to deliver in hospital. The package had these words: “This maternity package is one that puts together quality care and affordable prices. If your delivery proceeds as planned, there will be no financial surprises at the end of your stay with us.”
The hospital went further and promised that both the mother and child would be looked after in an environment of comfort and care by the nursing staff, as well as the resident doctors, who are under the stewardship of senior consultant obstetricians and gynecologists. The contract was available to all who met the medical screening criteria. And once a patient met these criteria, she was then to sign the contract that would state what one was entitled to and what one was not entitled to. There were two types of packages; the normal delivery package and the elective caesarean package. The cost of the normal delivery package was the equivalent of Shs1.2 million.
On January 19, 2003, one mother with the initials JWS, signed the maternity package contract. One of the doctors in the hospital examined her and judged her to be medically eligible for registration under the normal delivery package. This was her third pregnancy. Her first two pregnancies had ended up in miscarriages, each occurring at two months of pregnancy. On the third pregnancy, JWS attended antenatal services at AAR, a health care provider. However, AAR’s policy was that they would only look after the mother for seven months and thereafter, she would fend for herself. It was therefore not a surprise that the mother was attracted to the special maternity package offered.
JWS faithfully came for her antenatal visits from January 20 to March 5, 2003 and the records indicated that she was doing well. An ultra sound scan done on January 21, 2003, indicated that the baby was developing normally. The mother was admitted on March 12, 2003. The reason for her admission was that she was one week past her date of delivery. She was monitored and reviewed that day and at 10pm, she was taken to the labour room, accompanied by two midwives and her husband.
Labour progressed well but when the baby’s head came out, the baby’s shoulder got stuck in the mother. This is a condition medically known as shoulder dystocia. The nurses called a Senior House officer, who came within 10 minutes and struggled with the baby and managed to pull it out. The baby, on being examined, was found to have sustained injuries to the nerves supplying the arms. The injury to these nerves is known as Erb’s palsy.
Going to court
According to the baby’s father, he did not know of this, nor was he informed immediately. However, when he was tipped about the injury, he consulted a specialist, who indeed confirmed that the baby had Erb’s palsy. The family sued the hospital and the doctor who conducted the delivery.
The family argued that the baby should have been delivered through caesarean section and that the doctor failed to use reasonable skill in the delivery of the baby. It was the hospital and the doctor that screened the mother and chose the package for normal delivery for her. The family stated that when the mother entered into contract for the special maternity package, they expected that the mother and the child would be attended to at the time of delivery by a team of doctors. Instead, they saw midwives who from the time of admission at 11.45am, up to the following morning at 1:15am. The family alleged that if the doctors had been in attendance at all times, the baby would not have been injured.
Hospital’s defence
The hospital and the doctor put up several defenses. They argued that in hospitals, the delivery of babies is done by midwives. The doctor only comes in where there are complications. And in emergencies, a doctor would be called, as happened in this case. The hospital also brought it to the court’s attention that most cases of shoulder dystocia cannot be predicated or prevented because there are no accurate methods of identifying babies who will develop this complication. Some of medical literature brought to court concluded that “because shoulder dystocia cannot be predicted, obstetricians must be well drilled in its management (and) the reduction in the interval of the time from delivery of the head to the delivery of the baby is essential. Some journals recommend that hospitals should do drills of all the players, and in this case, the doctor delivering the child, midwives and obstetricians.
The family would have none of these. They told court that in this particular case, shoulder dystocia and injuries to the nerves were predictable as they are associated with a normally larger than average baby at birth. The doctors should have noted that this was a big baby. At birth, the baby weighed 3.9kg. An independent expert told court that there was poor monitoring of the baby and at the time the doctor arrived at the delivery room (10 minutes after the delivery of the head), he had no choice but to pull the baby out. The forceful pulling caused the baby’s injury, concluded the expert.
The doctor who delivered the baby had not yet qualified as an obstetrician; he was studying for his Masters in Obstetrics and he was also pursuing a fellowship with the Royal College of Obstetricians and Gynecology. He stated, under cross examination, that he had actually not completed his studies and that he wished to have more experience. The doctor told court that although he had delivered so many children, he had in fact never experienced this type of delivery before.
The judge’s take
One issue the judge had to determine was whether this suit had merit. The judge, in his wisdom, pointed out that often an area of neglect may continue for years and affects many individuals until someone comes forth with litigation. Litigation serves as a watchdog for more quality care and it is the result of someone wanting justice, the correction of a wrong and prevention of the recurrence of a problem.
The judge defined negligence as “the omission to do something which a reasonable man, guided upon by those considerations which regulate the conduct of human affairs, would do, or doing something which a provident and reasonable person would not do.” In strict legal sense, the judge stated negligence means more than needless or careless conduct, whether in omission or commission. It properly connotes the complex concepts of duty, breach of that duty and damage thereby suffered by the person to whom the duty is owed. The judge found both the hospital and the doctor negligent.
“I find the hospital negligent for offering a package that was in reality a legally binding contract to provide quality services, but failed to provide that service as required. The mother consented to a vaginal delivery at the advice of a doctor assigned to her by the hospital. The doctor owed a duty of care to the mother and the child to ensure that there was a safe delivery. That duty of care was breached and as a result, the child sustained irreparable injuries. The injury could have been avoided.”
DrOnzivua is a consultant Forensic Pathologist.
editorial@ug.nationmedia.com
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