Midwives Defence Service represents midwives who are facing a claim for damages based on clinical negligence.

Midwifery Negligence

A midwife who causes harm to a mother or baby can be sued in negligence. A midwife if she is in practice in the NHS (being formally employed by the NHS) will be covered by their employer’s insurance policy. Midwives who are independent, agency or locum staff will need their own inurance to cover negligence. A negligent act can be by way of act or omission. Some hamr may be minor or transient. While other harm maybe longer lasting or permanent. Harm, of course, can come in many forms and might occur at any time during pregnancy, labour, of during the period of after care and follow-up.

Record Keeping

Good record-keeping, that is contemporaneous and detailed, will assist a midwife in demonstrating that they have acted appropriately. Employers and the NMC repeatedly refer to the need for the compilation of good records. A midwife who fails to keep good records puts her or himself at greater risk of a successful suit where harm is alleged.

There is a trend right now that people who undergo procedures have expectations that modern medicine or midwifery techniques will ensure that they have no adverse outcome at all. Yet we clinicians know that many adverse outcomes are a normal risk or undergoing a procedure or of pregnancy itself, without there being any negligence whatsoever on the clinican’s part. So how do we ensure that out clients fully appreciate the risks involved?

Informed Consent

Good education, guidance and advice is an important first step in ensuring that a client has a better understanding of the risks involved. A record should be kept of any advice given. When it comes to consent, an individual needs to fully appreciate the options available, so that they can weigh them up properly, and arrive at an informed decision, otherwise known as informed consent. The legal doctrine of informed consent has gone through an evolution over the past 25 or so years. There is a greater public understanding now of health matters. Infomation is more readily available on a variety of subjects, in a number of media forms. The internet has given people a far more accessible reading list and so many of our clients are more clued-up than before.

When consenting a client to a procedure, listen to their questions, answer them fully, give them literature to read, or a reading list of linked material on the web. Ensure that they have sufficient information to arrive at their decision to proceed in one way or another. One of the main planks of a negligence claim these days is a failure to properly consent a client. A court will award damages to a client where they have not been properly consented to a procedure, that carried risks of which they were unaware. As a consequence, such clients would be unable to make an informed decision about the care or treatment to be provided to them, on the NHS or privately.

The courts expect clinicians to advise their clients about obvious risks. The more remote the risk, however, the more difficult it is to determine whether such a risk should be conveyed to the client. There are some clients who will not wish to hear about any of the risks involved, who will advise the clinician to “just get on with it”. This basis of consent should be recorded, and the client should sign to confirm their position. Others will want as much detail as possible. There may be occasions where a client asks a question that the first clinician cannot answer. A second clinician may then need to be involved to explain matters in sufficient detail for the client to make an informed decision. All of these discussions should be noted, and the consent form should reflect te risks that have been discussed and consented to.

Some clinical centres have standard conset forms that set out the main risks of a particular procedure. All the same, the clinican should ensure that the client understands what is being proposed, and the risks involved, giving the client an opportunity to seek clarification. A full and detailed consent process will protect the clinician and their employing organisation from misunderstandings and false claims that certain risks were not discussed.

Some clients will make things up to obtain compensation. Others will mis-recall what took place, and what was discussed. A full and detailed consent, supported by good clinical notes, is likely to reduce the number of claims over time.

Adverse Events

On a rare occasion, a midwife may be negligent, through act or omission, causing harm to their mother or baby client. To avoid adverse events, it is important that there are good clinical governance standards and supervision in place. Good quality and frequest training, too, will reduce the likelihood of negligence occuring, as will having a well-staffed and well-resouced clinical unit. Yet even where all of that is in place, things can occasionally go wrong. A midwife will either fail to use their judgment apporopriately or will do something that causes an adverse outcome. What is important here is that there is no cover up. A client should be told as soon as is practicable that something has gone wrong. An apology or expression of regret can often go a long way if delivered in an appropriate way. The advserse event will need to be fully recorded, accurately and as close in time to the event having occurred. A midwife has a duty to be honest in her acknowledgement of fault, and his or her notes should be accurate and truthful. A number of midwives each year cover up their mistakes but are later found out. Where they have been dishonest the consequences can be very severe. The NMC may suspend a midwife for a a long period of time, or strike their name of the register. For more information about honesty and probity, see our article: Dishonest Midwives

Poor After-Care

A number of claims are brought each year against midwives for negligent acts in the period of after care. A midwife needs to ensure that mother and baby are well and that they are seen appropriately by other clinicians. Relevant referrals need to be made and continuity of care assured.

Being Prepared

A midwife who takes careful setps to ensure that the care pathway is of a sufficient standard and that the records are kept of the client’s journey, will reduce the likelihood of being sued. However, when the letter arrives alleging failures it is most upsetting. Most midwives pride themselves on getting things right and so when criticism is made against them it can be shattering. Most employers are very supportive of their staff when things go wrong. A midwife may have to undergo further training and supervision for a while but the majority of midwives, those who have acted in good-faith especially, will usually go on to practise midwifery for many years after the negligence claim is resolved. Few cases go to court. Most cases are settled.

If you would like to discuss a legal matter with Midwives Defence Service, or need assistance with compiling a witness statement, contact us in strict confidence and wihout obligation.