“The lawyers want us to do CTGs.”
“If you don’t put a CTG on, you might get sued.”
“A CTG recording is your best protection from being successfully sued when there is a poor outcome.”
Have you ever heard something along these lines? I sure have. Many, many times over my career. Research confirms that it’s not just me. Concerns about legal consequences support CTG use around the world (Chuey, et al., 2020; Smith, et al., 2020). I have long wondered whether there is evidence that this anxiety is justified. I have looked for, but not found research that helps answer this question. That is – until late last year, when sociologist Louise Roth from the University of Arizona published a really nifty bit of research.
The research was conducted in the USA and the legal system there is different to the legal systems of other countries where CTG use is common. So her findings may or may not apply where you live and work, but are nonetheless interesting. Roth asked: Does variation in actual liability risk contribute significantly to the use of CTG monitoring?
How the research was done
Data about whether CTG monitoring was used in labour came from US birth records for births occurring during the period 1995to 2003. More recent data were not available as the type of CTG monitoring used is no longer routinely collected. (Sigh.) 10% of this data was sampled (as the population size was MASSIVE) and only births to women considered low risk were included. This was defined as births between 37 and 41 weeks gestation, in women aged 18 – 34, pregnant with one baby who is head down, and without previous caesarean section, or current placenta praevia, abruption, premature membrane rupture, cord prolapse, diabetes, hypertension or eclampsia. Just shy of one and a half million women were included in the final sample.
State by state data were then collected about the local legal situation. Some states had upper limits on the amount of money that could be paid for damages (caps). From the healthcare professionals perspective, a cap reduces the amount of money you will pay if the case is won by the complainant. Caps probably have only a small impact on whether a case will be started in the first place.
Other states had reformed legislation around “joint and several liability”. Joint and several liability made it possible for multiple people to be included in the one case. Rather than just one obstetrician being sued, a case might name three obstetricians, four labour and delivery nurses, and a neonatalogist in the hope that a larger sum of money will be paid, even if some of the other people played only a minor role in care. Some states have changed the law to proportionate liability, so the degree of financial responsibility is proportional to the direct responsibility of the professional in the outcome.
The final type of tort reform that might have an impact was “expert requirement”. These are rules about who can, or can’t be an expert witness in a malpractice claim. This increase the cost of a law suit for the person initiating it, and reduces the number of cases each year. Information about the type of reform (or none) in place could be compared with the proportion of women in that state who had CTG monitoring in labour.
Finally, the number of obstetric malpractice claims per year in each state were calculated. This was compared with CTG use in the following year, on the basis that practice might change after information about the cases was available. Information about the relative wealth and legislative ideology of each state was also collected and used in the logistic models as corrections for potential confounding. The maths used in the analyses were well described in the paper (and suitably fancy given the complexity of the question).
Well that was interesting
For starters – here is something to cheer you up if you are providing clinical care as a maternity professional. The incidence of obstetric cases that related to “failure to identify fetal distress” was a tiny 0.26% of all obstetric cases, and “failure to monitor” was 1.5%. The thing we are taught to fear is not quite the big scary monster when you put some numbers to it.
In states with caps on damages for pain and suffering, CTG use was MORE common, the opposite of what Roth theorised. Shifting from joint and several to proportional liability was associated with a lower probably of CTG use. States with expert requirements had higher rates of CTG use, again running counter to the hypothesis. The number of law suits per year had no impact on CTG use.
Roth concluded that “objective liability risk is not the basis for providers’ use of [CTG monitoring]” (p. 19). While Roth doesn’t say as much in her paper, it is my belief that it is irrational fear of liability, not reality, that drives CTG use. This fear is stoked by repeated statements and finger wagging – “you’ll get sued!”. There is no logical legal argument to compel clinicians to use CTG monitoring, a point argued strongly and repeatedly by Sartwelle (a lawyer) and colleagues (Sartwelle, 2017; Sartwelle, et al., 2015; 2017). If you play a role in educating and mentoring our next generation of clinicians, please refrain from repeating the message that CTG monitoring provides legal protection in the absence of objective evidence that this is true. It’s time we stopped frightening people and talked about what research actually says.
References
Chuey, M., De Vries, R., Dal Cin, S., & Low, L. K. (2020). Maternity providers’ perspectives on barriers to utilization of intermittent fetal monitoring: A qualitative study. Journal of Perinatal and Neonatal Nursing, 34(1), 46-55. https://doi.org/10.1097/JPN.0000000000000453
Roth, L. M. (2022). Defensive versus evidence-based medical technology: Liability risk and electronic fetal monitoring in low-risk births. Social Science & Medicine, in press. https://doi.org/10.1016/j.socscimed.2022.115565
Sartwelle, T. P. (2017). Electronic fetal monitoring: A defense lawyer’s view. Reviews in Obstetrics and Gynecology, 5(3/4), e121-e125. https://doi.org/10.3909/riog0191
Sartwelle, T. P., Johnston, J. C., & Arda, B. (2015). Perpetuating myths, fables, and fairy tales: A half century of electronic fetal monitoring. The Surgery Journal, 1(1), e28-e34. https://doi.org/10.1055/s-0035-1567880
Sartwelle, T. P., Johnston, J. C., & Arda, B. (2017). Electronic fetal monitoring, cerebral palsy, and medical ethics: Nonsense of a high order. Medical Law International, 17(1-2), 43-64. https://doi.org/10.1177/0968533217704883
Smith, V., Begley, C. M., Clarke, M., & Devane, D. (2012). Professionals’ views of fetal monitoring during labour: a systematic review and thematic analysis. BMC Pregnancy and Childbirth, 12(1), 166. https://doi.org/10.1186/1471-2393-12-166
Categories: CTG, EFM, New research, Obstetrics
Tags: litigation, medicolegal, law
Birth Small Talk 