Attending midwife and attending physician
Mistakes made during the management of a birth often have to be settled at the highest level.
If a child suffers harm as a result of mistakes made during the management of a birth, it is not uncommon for these mistakes to be attributable to several people. The courts then often have to decide what share is attributable to each individual – as in this case, the Federal Court of Justice.
It is very rare for a child to show signs of damage after birth. It is even more rare for this to be the result of medical malpractice on the part of those attending the birth. However, if this does occur, all those who have committed malpractice in the care of the birth can be liable for damages and compensation.
If it comes to civil court proceedings, all parties involved are usually sued and, if necessary, all jointly ordered to pay, without any statement being made as to how the internal allocation of the payments is to be made. A judgment of the Federal Court of Justice of December 6, 2022 (AZ: ZR 284/19) had to deal precisely with this question.
Birth process
The decision is based on the following birth process: The mother-to-be was admitted to the hospital at 2:35 a.m. twelve days after the calculated due date after the onset of labor and was initially cared for by the attending midwife on the ward. After being transferred to the delivery room, a continuous CTG was applied and at 5:15 a.m. there was a rupture of membranes. At 5:42 a.m., a suspicious CTG was observed.
The midwife then administered an oxytocic-inhibiting agent and at 5:48 a.m. notified the attending gynecologist, who after arriving at 6:10 a.m. and an examination ordered the insertion of an oxytocic drip, which the midwife carried out. He then asked the night nurse to assign him a patient room to sleep in, without there being a connection via emergency bell or the midwife being informed of his whereabouts.
As a result, bradycardia occurred several times, whereupon the midwife pressed the call bell at 6:30 a.m. without the doctor appearing. While the oxytocin drip was continued, a highly pathological CTG was recorded.
At 7:00 a.m., the doctor returned to the delivery room, had the oxytocin drip disconnected and initiated labor inhibition. At 7:15 a.m., the decision was made to perform an emergency cesarean section, and the child was delivered by cesarean section at 7:53 a.m. At 8:08 a.m., the pediatrician from the clinic a few kilometers away was called. When he arrived at 8:43 a.m., he found that the blood sugar level was not measurably low and started a continuous glucose infusion.
The child is severely disabled as a result of the oxygen deficiency at birth and the subsequent hypoglycemia.
Joint liability of midwife and doctor
Due to various errors during the birth, both the gynecologist and the midwife are legally obliged to pay damages to the child and the health and nursing care insurance.
If the midwife and gynecologist are jointly ordered to pay, the injured party is free to choose from whom they actually demand payment (Section 421 of the German Civil Code (BGB)). The law provides that, for the protection of the injured party, they can demand the full amount from only one of the parties involved, even though there are several parties. In such a case, however, there will subsequently be a clarification of how the burden of the payments is to be distributed among the parties involved. In the proceedings at hand, the gynecologist's professional liability insurance, which had already paid a large portion of the damages to the injured child, sued the midwife for 50 percent of the payments.
As a result, the court had to address the question of how to distribute liability between the midwife and the gynecologist. In answering this question, the court must consider the circumstances of the individual case and take into account the individual contributions to causation and fault (Sections 426 I, 254 I BGB). The decisive factor is the extent to which the individual parties contributed to the circumstances giving rise to the liability and the extent to which they are at fault.
The gynecologist's error
To do this, the court first considered the gynecologist's errors in treatment. The gynecologist's order for the induction of labor when he arrived at 6:10 a.m. is considered a treatment error. The CTG shows a drop in heart sounds from 5:55 a.m. without any visible labor activity. In this situation, adequate care for the child was not reliably ensured, which precluded labor stimulation.
A further error is seen in the fact that the doctor had not ensured that he could be reached during the critical period from 6:10 a.m. to 7:00 a.m. He could not be reached by emergency bell in the patient room where he had gone to rest, nor had he informed the midwife of his whereabouts. The court then takes an overall view of these two errors and assesses them not only as a simple, but as a gross error in treatment.
In addition, the doctor is accused of the fact that the EE time of 43 minutes far exceeded the minimum standard of 20 minutes. (The district court had incorrectly stated the duration as 43 minutes, but the higher regional court corrected the number to 38 minutes). Finally, a further gross error of treatment is seen in the fact that the gynecologist did not inform the pediatrician until 15 minutes after the birth and not – as would have been necessary – at the same time as the decision to perform a cesarean section was made.
Mistakes made by the midwife
The midwife's dereliction of duty must be contrasted with this. The midwife is not blamed for the administration of the oxytocin drip at 6:10 a.m., which the doctor is accused of ordering. Since the doctor was in charge of the birth at that point, she was subject to the doctor's instructions as an assistant and could therefore rely on the correctness of the order. However, she should have been more persistent in her unsuccessful efforts to consult the gynecologist and should have entrusted a nurse with the search. Above all, however, it is considered contrary to duty that the midwife did not remove the oxytocic drip herself and initiate a tocolysis when the doctor could not be reached, at the latest from 6:35 a.m.
In this situation, in which the doctor could not be reached despite the necessity and was therefore not present, she was no longer allowed to feel bound by the previously given instruction. Due to the absence of the medical service, personal responsibility was revived, since the midwife, as the only person with obstetric training, was able to prevent harm to the child. Referring to the regulations governing midwives, the court stated that taking the necessary measures in the absence of a doctor is also one of the activities for which the midwife is responsible.
Apportionment of liability
In weighing up the liability of the midwife and doctor, the court based its decision on the number and severity of the errors, three of which – two of them serious – were attributable to the gynaecologist. It also took into account the fact that the doctor's error was the cause of the emergency situation, which the midwife was unable to handle. In this respect, the court sees the main focus of the error as lying with the doctor. The doctor's contribution to the cause clearly outweighs the midwife's.
However, since the midwife, aware of the pathology of the CTG, had allowed the oxytocin drip to continue and had not initiated any inhibition of labor, her contribution to the cause did not completely disappear. Ultimately, the court deemed a division of liability in the internal relationship between the gynecologist and midwife in a ratio of 80 percent to 20 percent at the expense of the physician to be appropriate.
Conclusion
The decision of the Federal Court of Justice makes it clear that, in the case of a joint conviction of the attending midwife and attending physician, it is at the discretion of the injured party to decide who will make the payment to him. The internal settlement between the parties involved, which is to be carried out subsequently, is usually initiated by the respective liability insurers. In doing so, the respective specific contribution to causation and fault is taken into account.
The requirements for the use of the labor drip (order and termination) described above once again show the challenge for the midwife of having to switch between acting on a doctor's orders on the one hand and acting on her own responsibility on the other.
First publication in Hebammenforum 4/2024; 25: 41–43.
Johannes Jaklin