We previously commented on the initial steps in commencing a legal claim specific to claims involving Group B Strep infection and the considerations at the very earliest stages.
From the lawyer’s perspective, giving an accurate assessment of the merits of a claim at the outset can be difficult. As with any claim for clinical negligence we need to identify where treatment has fallen below a reasonable standard (i.e a breach of the duty of care) and that this has caused or materially contributed to an injury. There is therefore a threefold requirement of establishing breach , causation and injury. Without all three components, a claim will fail.
The initial instructions may not in themselves, clarify those issues and the lawyer’s role is often to provide the answers that the parents have been denied. It may not be possible to identify where a breach of duty has occurred and a hospital’s own inveownstigation may itself be inconclusive.
To that end once the appropriate medical records have been obtained, the choice and instruction of the correct experts is crucial.
By way of example, consider the case of a baby who died from GBS sepsis a few days after birth. The parent’s initial concerns were that whilst GBS infection had been noted early in the pregnancy and it had been intended to administer intravenous Antibiotics at the time of the labour, this had not been done.
Whilst there appeared to be a breach of duty in failing to administer antibiotics, the very poor condition that the baby was born in raised a concern that the infection itself may have been well established and the baby may not have survived in any event. Antibiotics do not have an immediate effect and if this is not in sufficient time to prevent sepsis then we would not be able to establish sepsis.
To consider breach, an obstetrician and gynaecologist was instructed to assess the management of the pregnancy and labour. In his report, he identified a criticism that neither the hospital or the parents had considered which was that in an attempt to induce labour an excessive number of stretch and sweeps had been performed.
A stretch and sweep is a process whereby a gloved finger is inserted into the cervix in an attempt to separate the amniotic sac membranes from the lower part of the uterus. This action can trigger the release of hormones and can start labour and is a routine procedure but, in our client’s case this was unsuccessful.
In a patient with known GBS colonisation, there is a theoretical risk that a stretch and sweep can introduce GBS into the uterus from the vagina and infect the fetus. For a single sweep this risk is acceptable in the interests of prompting labour, however in the context of multiple sweeps, it is not, particularly where there are alternative methods of prompting labour which do not carry such a risk i.e. prostaglandin gel.
A further report was obtained from a microbiologist who confirmed that the infection was transmitted to the fetus before birth , probably from the unnecessary , additional stretch and sweeps.
In such circumstances we were able to establish that there had been a breach of duty and that without the breach of duty, the infection which ultimately led to the babies death was avoidable.
It is therefore important to consider all aspects of the management both before, during and after the labour and not to focus on what may be the initial concerns. Claims for medical negligence often evolve as the case progresses and with cases involving infection, where there may be underlying and unrecognised processes afoot, careful expert instruction and an open mind are crucial.