Medico Legal Matters Relating to Obstetrics and Gynaecology

All medical procedures even childbirth have inherent risks, some of which cannot be avoided. Medicine is not an exact science, and a poor outcome does not necessarily mean there was medical malpractice. However, doctors, hospitals and medical professionals are nevertheless responsible for their actions like every other member of society. Medical malpractice is a negligent act or omission by a doctor, hospital nurse or other health care provider. in order to make a claim for medical malpractice there must have been a departure from an accepted custom or practice which caused injury or damage.


Being born is the most dangerous time of your life and unfortunately it is not uncommon for complications to arise during childbirth. Some of these are easily dealt with but in a minority of cases these complications if not dealt with properly can have devastating results for both the parent and particularly the child.

Cerebral Palsy

In 1862 John Little linked Cerebral Palsy to prolonged and difficult labour and delivery. It is now understood that approximately 85% of cases are probably due to unidentified antenatal events, perhaps 10-15% are due to birth asphyxia and very few are due to substandard care.

Cerebral Palsy is perhaps the most heart wrenching disorder a baby can be diagnosed with. It is a non-progressive disorder of movement and posture resulting from damage to the brain during birth. Many times cerebral Palsy results when the oxygen supply is inadequate or cut off from the babies brain. Medically this is called hypoxia.

Cerebral Palsy develops in 2-3 out of 1000 live births during the first years of life. Its association with complications during childbirth has led to much controversy and litigation. The vast majority of successful litigation in this area arises on proof of negligence in the handling of an adverse intrapartum event (intrapartum events are events that occur or recur between onset of labour and the complete expulsion of the baby). A realistic estimate may be that around 10% of cases of cerebral palsy stem from adverse intrapartum events. Foetal distress and hypoxia (not enough oxygen is reaching the babies brain) if not managed properly can lead to brain damage or cerebral palsy. However the mere existence of an adverse intrapartum event is not an indication of negligence, it is the mismanagement of such an event, which may give rise to an implication of negligence.

Shoulder Dystocia and Erb’s Palsy

Shoulder Dystocia is the arrest of the delivery of the fetal body after the delivery of the head. In most deliveries the shoulders deliver spontaneously after the head, however in dystocia the shoulders get stuck at the pelvic brim. It is usually unpredictable and occurs when the baby is unexpectedly large. It is a nightmare situation for the birth attendant and requires skill and expertise to overcome successfully.

The consequences (for the baby) of shoulder dystocia are serious if not managed properly. They include death (rare), hypoxia possibly leading to brain injury, Erb’s Palsy and Cerebral Palsy.

Erb’s Palsy

is usually characterized by paralysis of one of the arms of the baby and in some cases the diaphragm also.

Shoulder Dystocia and resultant Erb’s Palsy are infrequent events and is seen as little as two to three times per year in the larger hospitals. Nevertheless permanent or significant injury to an otherwise healthy newborn can on some occasions be due to medical malpractice. Usually claims will arise out of the fact that the obstetrician failed to recognize the dystocia early, applied inappropriate traction on the fetal head and neck which caused stretching of the brachial plexus or failed to use on or more obstetrical manoeuvers to release the dystocia.

However the mere fact that a baby has cerebral palsy or Erb’s disease or hypoxia does not indicate that a doctor has been negligent. The true test for establishing negligence in treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of acting with ordinary care.


Female Sterilisation

Sterilisation either male or female remains the most globally used method of contraception. There are remarkably few reports relating to long-term failure rates and short-term failure rates following female sterilization. It is estimated that if the procedures are carried out correctly the failure rate is as low as 2-3 per 1,000.

However litigation often arises in this area and the main reasons relating to sterilization procedures is compiled under four headings.

1. The patient was already pregnant at the time that the procedure was carried out and this fact was not noted by the surgeon.

2. That there was failure of appropriate counseling leading to failure to achieve proper informed consent.

3. That the operation failed because of:

  • A correctly employed technique was followed by recanalisation of the fallopian tubes
  • The procedure was inappropriately or inadequately performed.

4. That there was inadvertent injury during access to the tubes (e.g. Laparoscopy or Laparotomy), or injury relating to the method of the occlusive technique e.g. bowel perforation due to cautery.


One of the highest incidents of litigation in this area arises because of damage to the ureter during the course of pelvic surgery particularly abdominal hysterectomy. This very often can leave a woman incontinent after a hysterectomy. It is a widely held belief that in an uncomplicated operation where the anatomy is normal that there is seldom an excuse for damage to the ureter.

Other medico legal matters that arise in the area of gynaecology include cervical smear tests, which are frequently misread. Some estimates report that up to 10-20% of smear tests are misread.

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