Medical Indemnity and Birth

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Many still believe that the reduction of maternity services is a result of sky-rocketing insurance premiums directly impacting practitioners; a direct result of an over-litigious society ...

... despite hundreds of millions of dollars in rescue money to Australia’s medical profession, not one cent has been afforded to midwives.

Many know the collapse of medical/professional indemnity was largely a result of global factors, namely the demise of large re-insurers after September 11, 2001. Interestingly, the decision by Guild insurance to no longer offer a policy to midwives happened before this. Their reasoning, that the midwifery pool was too small, was justifiable. The fear of a major payout for catastrophic birth injury proved correct. In November 2001 the NSW Supreme Court awarded Calandre Simpson, an infant born at St Margaret's Private Hospital with cerebral palsy, ... eleven million dollars for the overdose of syntocinon, which caused her birth defects ... This payout assisted in the collapse of Australia’s largest medical indemnity organisation ...

Of particular importance is the hospital ‘care’ received by Calandre’s mother. It was proven that she was given an overdose of syntocinon (as part of an induction), five attempts at forceps were tried and finally caesarean section before Calandre was born with severe cerebral palsy. It was concluded that the syntocinon overdose, resulting in atonic uterus, could have caused the cerebral palsy, before the attempted forceps delivery.

... it is prudent to note that the Simpson family had considerable financial resources ... This enabled them to fund a nine-year legal battle. It also contributed to the high cost of the claim ...

The other interesting point is that although this case essentially toppled the medical indemnity industry, little has been learnt. Whilst the practice of performing a caesarean section rather than forceps is likely to have increased; the incidence of syntocinon use has not reduced. [about 50% women receive syntocinon to induce or augment labour - in some facilities, this is as high as 80%]. ... obstetric practice has largely remained unchanged.

... the Ipp Report of 2002 made recommendations for considerable Tort Law reform (the law governing personal injury negligence). Part of this reform was to ... implement a modified version of the ‘Bolam Test’. In at least NSW and QLD: ‘The standard of care will be that determined by the court with guidance from evidence of acceptable professional practice unless it is established (in practice, by the defendant) that the defendant acted according to professional practice widely accepted by (rational) peer professional opinion.’

Considering the majority of obstetricians engage in practices that are not based on evidence, this is deeply concerning. .... [For example] The evidence regarding episiotomy effectiveness would assist a consumer in mounting a claim. Under the ‘Modified Bolam Test’, however, if the subject practitioner gathered other specialists who agreed they would also perform an episiotomy, the injured woman could be unsuccessful.

In response, the Australian Plaintiff Lawyers Association stated in a submission to government ‘APLA is concerned that doctors already hold a privileged position in our society and are treated differently to other groups, including other professions. Patients’ rights should not be compromised for the sake of doctors’ hip pockets.’

... the Australian public ... still believe that the reduction of maternity services is a result of sky-rocketing insurance premiums directly impacting practitioners; a direct result of an over-litigious society. This could not be further from the truth. Medical practitioners have been very well protected, whilst consumer rights have shrunk and the continuation of a totally anti-competitive maternity health system has resulted in a reduction of services ...

... The most obvious outcome of the refusal by both the federal and state governments to assist with midwives' indemnity insurance has been a great reduction in the numbers of privately practicing midwives. Alongside this very few private health funds provide a midwifery/homebirth benefit. Of those who do, most do not provide a benefit on par with obstetric pay-outs.

The advent of the Bachelor of Midwifery was very positive. Practical experience however has been severely restricted. Students are unable to gain experience with homebirth midwives, rather they experience the highly interventionist ‘system’. It would seem the theory of educating a midwife to work in continuity and community models is of little use when the majority of students are unable to complement this learning in practice.

Access to Medicare provider numbers ... is impossible without indemnity. There is however no impediment for the Rudd Government to include midwives in the PSS, only fear from the backlash from some obstetricians. ... [as evidence by statements from the recent Maternity Services Review]

Women’s choice is only acceptable if it is palatable to those who control maternity services, the powerful medical lobby.

If Minister Roxon was to facilitate indemnity cover and funding for midwives this would demonstrate a fundamental commitment to maternity reform. It would also enable midwives to take their rightful place as the expert in normal birth.

Consumers have again been silenced in this debate ...

Interestingly the rights of Australian women choosing private midwifery don’t have the same value as those women choosing the services of a specialist obstetrician or a procedural G.P. When I challenged the legal branch of NSW Health with this comment I was greeted with silence.

Indemnity insurance will be compulsory from July 2010 ... And midwives are still denied any support. Taxpayers have now funded close to $900 million in indemnity support for medical practitioners. Considering the facts of the Calandre Simpson case one has to ask why the Government continues to back such a ‘risky horse’.

Another contentious issue that has surfaced since the loss of indemnity insurance is the establishment of public funded homebirth services. Whilst my socialist heart leaps for joy that women can access the care of a known midwife and the option of homebirth without cost, fundamentally these programs are flawed. They all exist with rigid guidelines and on the back of the benevolence and goodwill of obstetricians. Some of these individuals are truly wonderful and their practice most progressive.

The premise, however, that midwifery practice can only exist on the say so of the medical establishment is dangerous.

Private midwifery services do not exist under the medical establishment: they exist completely outside of the "system": a very attractive feature for the women who seek such services.

Surely the central tenant of midwifery reform is to establish a midwifery scope of practice that enshrines the appropriateness of midwifery care based on education and registration. It must also enforce the very heart of midwifery, ‘being with woman’ and as such the relationship between a woman and midwife. This, in turn, would help establish the rights of women to make choices around how, where and by who their bodies’ are/or are not handled.

Whilst the catastrophic birth injury of Calandre Simpson is tragic, the impact of her court outcome has not been critically analysed. The whirlwind of risk management and defensive practice that has followed was not justified. Calandre Simpson was a ‘veritable needle in a haystack’ — a terribly injured person as a result of negligence, from a family of considerable means able to fund expensive litigation. Instead of looking at what constitutes negligent practice and rewarding its reduction, the federal government chose to remove the rights of consumers, protect the pay packets of medical practitioners, deny midwives their rightful practice and support on-going dangerous procedures.

Melissa Maimann, Essential Birth Consulting 0400 418 448