Report author agrees that maternity outcomes matter, litigation costs should be considered in economic considerations, and antenatal information must be unbiased.
On September 26th*, following the NHS Resolution (formerly NHS Litigation Authority)’s publication of Five Years of Cerebral Palsy Claims, A thematic review of NHS Resolution data, the report’s author, Dr. Michael Magro, kindly agreed to talk to me about his findings, and my concerns about the impact caesarean rate targets are having on maternity care.
Planned Caesarean Outcomes and Claims Data
To begin with, having noted that only 1 of the 50 cerebral palsy cases occurred as a result of an ‘elective caesarean’ (2%), I was interested in whether Dr. Magro had been able to determine the planned mode of delivery from the NHS Resolution raw data.
Unfortunately, no – he had to go into each health record and investigation report manually in order to establish this because the information held by the NHS Resolution is at a macro level, and the obstetric data coding (which includes ‘cerebral palsy’) does not have separate fields for elective and emergency caesareans.
This is disappointing for three reasons:
- Five years ago, I asked the (then) NHS LA to ensure that all claims data collected and recorded includes information about the type of caesarean (planned or emergency), and on November 1, 2011, I received confirmation from a Risk Management Director that this change would be implemented:
“I refer to your email of 18 September 2011 addressed to Steve Walker, Chief Executive of the NHSLA… Unfortunately, for practical reasons, the NHSLA cannot go back to existing caesarean birth claims to determine whether they relate to an emergency caesarean or a planned caesarean. We will, however, introduce a system for recording this information on new claims in future.“
- In the NHS LA’s 2012 report, “Ten Years of Maternity Claims“, one of the learning points cited included this: “The coding used by the NHS LA to record claims needs to be revised to assist ongoing analysis and support further learning.”
I had read this as further assurance that the importance of identifying planned mode of birth, and distinguishing between elective and emergency caesareans, was understood and being implemented.
- Any researcher requesting FOI data to explore the relationship between planned mode of birth and litigation claims (as I did when requesting clarification of the caesareans referred to in the 2009 NHS LA Study of Stillbirth Claims by John Mead) is now still hampered in their investigations.
Caesarean Rate Targets
I was particularly interested in any impact that ‘caesarean rate‘ or ‘normal birth‘ targets might have had on the report’s cerebral palsy cases, and also maternal request refusal before or during birth, but while Dr. Magro said this could not be seen in the data (“the quality of data we’ve got is only as good as the quality of the local hospital investigations, and women are often not involved in these“), he acknowledged that it’s possible this level of information detail might not have been included in the data he analysed.
Importantly, he said, “On a personal and clinical level, being an obstetrician, I think any policy that focuses solely on a caesarean delivery rate without including other patient outcomes, is not the best way to go forward. Balancing metrics is required“
“Picking an individual number, a number that the caesarean rate should be below, is not the right approach; it should be done on quality indicators of outcomes.”
‘Patient Autonomy and Informed Decision Making’ (Five Years Report Theme)
The report cited two cases related to this theme:
1. previous shoulder dystocia with a macrosomic baby and elective CS not offered
2. previous 3rd degree tear with VD risks not discussed and CS option not documented
I asked Dr. Magro about these, sharing my concerns about maternal request refusal and the lack of balance in much antenatal communication, and he responded,
“I think you’re right in terms of wanting to push the issue of better information for women so that they can make informed decisions.“
Coincidently, Dr. Magro also published a letter in BJOG in September, in reply to Montgomery and implications for clinical practice (BJOG 2017 A.Smith), and said,
“I am pleased to see that this important issue has been discussed in depth, as a respect for patient autonomy and appropriate consent are cornerstones of medical practice… The key features of informed decision-making involve the healthcare professional and the patient engaging in dialogue about treatment options, their benefits, risks, consequences and alternatives. In accordance with the GMC’s guidance on good medical practice, this information must be clear, accurate, balanced without bias and take into consideration the individual patient… [This] will improve quality of care and possibly reduce subsequent litigation.”
It is very encouraging to see and hear such public support for women’s autonomy, both in terms of improving care and reducing litigation, considering it was only a little over a decade ago that some doctors I interviewed asked to be anonymous when talking about this issue (one said they didn’t want to ‘stick their head above the parapet‘).
Claims Cost to the NHS
Dr. Magro explained that the 11 cases in the report that have already had damages settled or paid were generally for babies born with severe neonatal brain injuries who subsequently died.
Claims for those babies who survived have had legal liability admitted with settlement still to be determined.
The average cost of each of these 11 claims was £111,296, which is significantly lower than the expected cost of the remaining 39 (and remember, this is only CP claims from the past 5 years; the 2015 Montgomery case alone related to an 18 year old birth injury, so there are many more claims in those intervening years to consider too).
The report says, “If the remaining 39 claims are resolved at the current average financial reserve for a CP claim of £10 million, the total cost to the NHS could be £390,111,296, excluding defence costs… with the possibility of individual claims reaching above £20 million.”
This would mean doubling that estimate to almost £800 million – for just 39 claims in only 5 years.
I explained to Dr. Magro that NICE and other organisations often ignore litigation costs when comparing the cost of planned vaginal and caesarean birth, and he said,
“Your point around litigation finance not being taken into account when considering economic data is interesting. I would assume that would be quite a big consideration, especially if they’re trying to think how this money can be spent.“
Ironically, given that 49 of the 50 CP claims were planned vaginal births, there has instead been an assumption in maternity care policy that the NHS can save money by reducing its caesarean rate.
For example, RCOG’s 2015 Green-top Guideline No.45 (Birth After Previous Caesarean Birth) cites a consensus “that planned VBAC is a clinically safe choice for the majority of women with a single previous lower segment caesarean delivery. Such a strategy is also supported by health economic modeling and would also at least limit any escalation of the caesarean delivery rate and maternal morbidity associated with multiple caesarean deliveries.”
There is also the infamous health economics quote that has been cited by some journalists and caesarean critics since 2011: “the NHS could save £5.6 million in birth costs for every percentage point reduction in caesarean section…” (pg.100 & 219 of NICE CG132 Final Draft).
Readers may be interested to know that the CG132 Final Version was corrected to read £4.9 million (my organisation noted the miscalculation in the final round of Stakeholder comments), and that the figure actually never appeared in the official ‘CG132 NICE version‘ that was published and distributed by NICE.
Furthermore, the economics analysis consciously excluded litigation costs (and costly pelvic floor damage treatments for that matter), when in fact the suggested £4.9 million savings wouldn’t even pay for half of one CP case.
Similarly, analysis in the 2004 NICE Caesarean guideline (CG13) was determined to highlight the ‘millions’ of cost savings with keeping maternal request caesareans to a minimum:
Even when one of its own cost models suggested savings, this was dismissed:
Notably, the Five Years report’s References section on page 80 does not include the 2011 NICE CG132 Caesarean section guidance, but does include NICE CG190 Intrapartum care for healthy women and babies.
I mention this because the exact same thing occurred in the RCOG’s recent (October 2017) Each Baby Counts report – CG190 included, CG132 excluded.
I have repeatedly communicated to NICE, the government, and others, that this separation of guidelines is not conducive to best maternity care practice – or to any analysis of when things go wrong.
Planned MODE of birth outcomes are as, if not more, important than planned PLACE of birth outcomes, even if the latter (which excludes stillbirths prior to onset of labour) suits normal birth ideology better.
Five Years of RCOG’s 20% Caesarean Rate Recommendation
Keeping with the theme of ‘Five Years’, it was in 2012 that numerous maternity organisations, charities and medical professionals put their names to this highly critical press release: ‘New RCOG guidance urges CCGs to increase births without epidurals and reduce caesarean rates to 20%‘
In its guidance, the RCOG said, “The consensus statement from the Maternity Care Working Party defines normal birth as “without induction, without the use of instruments, not be caesarean section and without general, spinal or epidural anaesthetic before or during delivery”. It is important to try to increase this rate as well as that of vaginal birth, which includes delivery by forceps and ventouse.”
I would suggest it is extremely doubtful that a normal birth outcome was the most ‘important’ thing for all the families affected in Dr. Magro’s report – or indeed anyone affected by death and injury following absent or delayed caesareans.
And then Editor-in-Chief of BJOG, Professor Philip Steer, specifically warned, “To try and achieve increased rates of uncomplicated births by reducing the availability of labour induction, epidural anaesthesia and caesarean section for informed women who request them, reduces choice without any guarantee of an improved outcome (and is likely to increase medicolegal costs substantially).”
He was right, but the recommendations (initially removed from the RCOG’s website following criticism) remained.
Litigation and Law has Leveled the Playing Field
Back in 2001, 51% of (172) RCOG consultants believed that a caesarean was safer for the baby, and all but two consultants said that they believed there was a shift in obstetric culture towards a lower threshold for performing a caesarean – and yet in the intervening decade we have seen claim after claim citing delayed, absent or refused caesareans.
There is evidently disagreement between members within the RCOG.
Thankfully, maternity legal claims have eventually forced progress, as this Abstract from The Practicing Midwife journal in June 2016 demonstrates:
“This landmark legal case has changed the law on consent in health care. All health care workers must be aware of the implications of this for their practice when ‘sharing information’ with patients and the assertion of consent by the patient. Essentially, Montgomery banishes medical paternalism, putting the focus firmly with the patient. This is the standard that will now be used by both the courts and the regulators.”
Montgomery consent’: decision of the UK Supreme Court. Montgomery v Lanarkshire Health Board [20151.  UKSC 11;  WLR 768. Beckett H, Radford J.
My hope is that as more obstetricians within RCOG feel brave or confident enough to speak out on the issues of maternal request and ending caesarean rate targets (together with the midwives who are already in support of this), we will not only see higher levels of maternal satisfaction, but also fewer deaths and injuries, and lower litigation costs.
No birth plan is risk free, but if the Five Years of Cerebral Palsy Claims report is representative of which birth plan has the highest litigation costs (and I believe it is), a national policy of reducing caesarean rates (including maternal requests) on the grounds of cost-effectiveness (or being a waste of valuable NHS resources) is proving to be one of the greatest false economies in healthcare history.
Also see: April 12, 2018 Lecture by Dr. Margo, filmed for the event ‘Patient safety: maternity and the legal process‘ at the RSM.
- Written by author and journalist Pauline Hull, with special thanks to Dr. Magro and his excellent report
* Publication has been delayed as I wanted to include a statement on caesarean rate targets from the Department of Health. Unfortunately, after almost 40 days, this has not been forthcoming, so I will update here once received.
The idea that reducing costs by reducing rates of maternal request cesareans or other planned cesareans is indeed a false economic statement. If one factors in litigation, gynecological costs associated with maternal damage caused by planned vaginal births and costs of damage to babies (cerebral palsy is only one example) as well as stillbirths it is clear that planned vaginal births are more costly than planned cesarean births.