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Documenting accurately, as well as appropriate monitoring of both mother and fetus, is crucial in managing legal risks in obstetrical nursing.
Perinatal nurses (those practising in labour and delivery, maternal care, and neonatal care) most frequently report lawsuits and occurrences – events which may become lawsuits – to the Canadian Nurses Protective Society (CNPS). In the five-year span from 1998 and 2002, 16.2 per cent of all occurrences and 20.3 per cent of all lawsuits reported to CNPS were reported by perinatal nurses. Both percentages are the highest in their respective categories. 1
To assist these nurses in managing their legal risk, CNPS in 2002 published a legal information sheet, an infoLAW, on obstetrical nursing. 2 Coincidentally, CNPS received many requests in 2002 for a nurse lawyer to speak to perinatal nurses about legal risk management. Consequently, I addressed conferences and workshops held in Ottawa, Calgary, Edmonton, Regina and elsewhere. I observed a common concern at all the conferences, namely, intermittent auscultation of the fetal heart rate (FHR). The debate among obstetrical nurses about intermittent auscultation inspired this article.
Obstetrical nurses attending these conferences were well aware that the Society of Obstetricans and Gynaecologists of Canada had revised their clinical practice guidelines on fetal health surveillance in labour in March 2002. 3 This is as it should be since fetal monitoring in labour is largely the responsibility of these nurses and has been recognized as such in law: “Within the obstetrical team concept, each of the professionals involved has a particular role and one of the responsibilities of the staff nurse is to properly monitor fetal status and report concerns either to a team leader, an intern, a resident or the staff obstetrician.” 4
These nurses openly analyzed and debated their own practices of intermittent auscultation of the fetal heart rate. Concern was still prevalent that a legal defence would not be as successful if fetal monitoring was done by intermittent auscultation as opposed to an electronic fetal monitor. The paper tracing generated by an electronic fetal monitor was viewed as ‘hard evidence’ of the nurse’s work. In order to challenge that view, I would like to present the following obstetrical malpractice case.
The facts of the case 5 are that the expectant mother became a patient of the family doctor of her choice. She wished the delivery to be as natural as possible with surgical intervention only if necessary. She had an uneventful, full term pregnancy. Spontaneous rupture of membranes led to a first stage of labour lasting five hours, with full dilation at 1100h. From that time on, her doctor was with her most of the time, as were one or both of two nurses. The FHR was assessed throughout the first and second stage by the nurses with a Doptone. The FHR readings were within normal range and decelerations during contractions recovered well. FHRs were recorded on the chart every three to four minutes, the shortest interval being two minutes and the longest being eight minutes.
At 1247h, the last FHR was heard. After the next contraction at 1250h, the FHR could not be heard. This was attributed to the fetal position deep within the pelvis. The doctor was prepared to intervene if necessary. In the next 13 minutes, she picked up the episiotomy scissors twice but put them down. At 1251h, the head was crowning. At 1255h, the doctor could see and feel fetal activity. At 1300h, contractions were not as strong and the head had not advanced. The doctor decided to see what would happen with the next contraction. It was no stronger, so at 1303h she performed an episiotomy. Sixteen minutes had passed since the last audible fetal heart beat. The baby was promptly delivered, pale and limp. The baby was resuscitated but suffers from CP. A pathology report described a degree of placental abruption towards the end of labour as well as placenta villus immaturity. A CT scan of the baby’s head revealed a congenital malformation unassociated with hypoxic ischemic encephalopathy.
In the lawsuit commenced on behalf of the baby, it was alleged that the nurses were negligent for failing to adequately assess the mother and fetus, and record those assessments, thereby providing insufficient data to the doctor. It was also alleged that the doctor did not expedite the delivery when the FHR could not be heard.
The patient and her husband testified there were two periods of about 20 minutes each after 1100h when no one was in attendance upon them. Both nurses testified and relied upon their chart entries. The court accepted their evidence, both their oral testimony and their charting, finding that there was constant nursing attendance upon the patient except for a period of no more than 5 minutes around 1100h when the doctor conferred with one of the nurses in the hallway. Furthermore, the court found that the doctor and nurses were aware of the importance of monitoring the FHR and its characteristics. The FHRs taken and recorded during second stage of labour were sufficient to properly monitor the fetal status. There were no indications that the fetus was in difficulty or that labour was not progressing normally. The doctor had sufficient data from the nurses to supplement her own assessments. The court concluded that the plaintiffs had failed to prove that the nurses had breached the standard of care for monitoring and were negligent. The case against them was dismissed.
The negligence claim against the doctor was also dismissed. The court examined the basis for her decision of when to expedite delivery. The evidence before the court was that the factors she considered and the timing of her intervention met the standard of care.
As this case illustrates, plaintiffs in a civil lawsuit must prove their case. Defendants have the opportunity to provide evidence that they acted reasonably and prudently in the circumstances. The defendants in this case were able to adduce evidence as to the reasonableness of monitoring the FHR exclusively with a Doptone in these circumstances. Proper documentation of their intermittent auscultation of this baby’s heart rate was an invaluable part of these nurse’s defence. Obstetrical nurses, take note and take heart.
CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.
- Canadian Nurses Protective Society, Annual Report, April 2002.
- infoLAW Obstetrical Nursing (vol. 11, no. 1, September 2002).
- Society of Obstetricians and Gynaecologists of Canada, Clinical Practice Guidelines, Fetal Health Surveillance in Labour (PDF format), No. 112, March 2002.
- Granger (Litigation guardian of ) v. Ottawa General Hospital,  O.J. No. 2129 (Ont. Gen. Div.) at para. 97.
- Johnson-Coy v. Barker,  B.C.J. No. 862 (B.C.S.C.).
Note: This article has been reprinted with permission from The Canadian Nurse Journal, September 2003.
THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.