Liability and Risk Management in Fetal Monitoring



Liability and Risk Management in Fetal Monitoring





Malpractice litigation is prevalent in modern clinical practice, and the associated stress affects all health care providers (1,2). Although not all obstetric malpractice cases involve fetal monitoring, electronic fetal monitoring (EFM) is one of the most common procedures in obstetrics (3), making allegations related to EFM a familiar occurrence in obstetric litigation. Some of the most common allegations leveled against obstetric teams related to fetal monitoring include failure to correctly interpret and/or manage fetal heart rate (FHR) tracings, failures related to team communication, and failure of appropriate provider response to nursing notification of FHR findings (4). And while many clinicians continue to believe that most malpractice suits in obstetrics are frivolous, evidence suggests that substandard care can be linked to adverse outcomes. Specifically, in claims related to EFM and fetal hypoxia, substandard care has been reported to be an issue in as many as 60% of cases (5). Several centers have successfully instituted safety approaches to reduce adverse obstetric outcomes and improve teamwork (6,7 and 8), with some interesting similarities among these initiatives. These include communication and teamwork training, standardized approaches to common clinical practices, improvements in situational awareness, and rapid response teams for emergency situations.

This chapter will address common areas of risk for nurses, midwives, and physicians, with suggested practice strategies using a case-based approach. We will review key aspects of risk management related specifically to fetal monitoring, including suggestions for evaluation and management, documentation, and nurse-provider communication. The case example approach will also illuminate two types of defenses to malpractice allegations. Finally, public policy efforts aimed at the establishment of alternatives to the current tort system will be briefly presented in an effort to enhance awareness of these initiatives.


THE MEDICAL LIABILITY PROCESS

Following a poor obstetric outcome, patients will often initially consult an attorney because they are seeking an answer to the question “Why did this happen?” But the legal process in medical malpractice cases is not necessarily designed to provide answers. Claims of medical and nursing malpractice are adjudicated in civil, versus criminal, courts under the area of law known as tort law. This system is therefore adversarial, with attorneys representing each side of the action, or lawsuit. The goal of the plaintiff is to win the case by proving negligence, or malpractice, while the goal of the defense is to prevent the plaintiff from succeeding. For a plaintiff to win a malpractice suit, four elements must be proven:



  • Duty—that the patient was owed a specific standard of care by the defendant


  • Breach—that the defendant failed to meet the specific standard of care


  • Causation (proximate cause)—that there is a direct relationship between the failure to meet the standard of care (“breach of duty”) and the injury to the patient


  • Injury—that there was an actual harm or injury

Although “injury” is listed as the fourth element, in reality it is the primary element, for without a recognized injury there can be no lawsuit. The tort system provides only one remedy to an injured party and that remedy is a monetary award known as “damages.” The system is therefore driven by “bad outcomes,” with the severity of the outcome directly proportional to the amount of the potential award. Assuming there is a recognized injury, this leaves the plaintiff with three elements to prove in order to win monetary damages. The first element, duty, is easily proven by establishing a relationship between the health care clinician (nurse, midwife, resident, physician, etc.) and the patient. The next element is breach of duty, which must be established by proving a deviation from the standard of care. The third element, causation
or proximate cause, is proven by the plaintiff establishing a causal link between the alleged deviation(s) of the standard of care and the actual injury sustained. Thus, there are fundamentally two basic types of defenses to allegations of malpractice, and one or both may be used depending upon the facts of the case. The first is a defense premised upon the showing that there was no “breach”; that is, the defendant clinician provided care that was within the “standard of care,” commonly defined in most jurisdictions as care that is reasonable and prudent. The second defense relates to the element of “causation.” The basic assertion of a causation defense is that any breach of the standard of care could not be related to the harm or injury sustained by the plaintiff. In cases involving EFM, an understanding of both defenses is crucial. The following case examples will illustrate a variety of issues in obstetric malpractice related to both standard of
care and causation, and will provide suggestions for practices that both reduce the occurrence of preventable error as well as promote the vigorous defense of appropriate care.






Figure 14.1. Note initial tracing with tachycardia and minimal variability (A), followed by an apparent late deceleration and a prolonged deceleration (B).




Jun 22, 2016 | Posted by in CARDIOLOGY | Comments Off on Liability and Risk Management in Fetal Monitoring

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