Prof Diana du Plessis; Ms Aneke Grobler; Prof E Seekoe
An extract of a peer reviewed article.
Midwifery and obstetric medical negligence claims in South Africa are big business. Over the past decade there has been a steady increase in the number of malpractice claims brought against health care providers in South Africa specifically in maternity care; and in the monetary damages awarded to plaintiffs. The experience of these claims is psychologically distressing, potentially impacting negatively on the morale and retention of obstetricians and midwives.
Although most maternity-related litigation has been directed towards employees in State-funded healthcare facilities and towards the obstetrician in private health care; a minority of cases are taken against the midwife in private practice.
Private midwives embrace the philosophy of woman-centred care that gives priority to the wishes and needs of women with a normal pregnancy, labour and post-natal period (Banks 2010:37-39). The private midwife is regarded as the primary care givers and works in close collaboration with obstetricians who share the same philosophy of childbirth, and who agree to provide obstetric back-up in cases of emergencies
Private midwives as well as the back-up obstetricians, are independently indemnified while the employer of the labour ward staff is vicariously liable for their acts or omissions.
Malpractice is a broad term that is used to incorporate negligence, misconduct, or breach of duty by a professional (Reising & Allen, 2007). Malpractice occurs when the private midwife practice in contravention of the midwifery standard of practice, resulting in in injury/damage to a patient, or adverse outcomes that may last a lifetime.
According to Reising and Allen [2007], common malpractice claims arise against nurses when nurses fail to assess and monitor the maternal and fetal wellbeing; follow standards of care; use equipment in a responsible manner; advocate for their patients; communicate their observations to a medical practitioner, “the doing of something which a reasonable midwife would not do, or failure to do something which a reasonably midwife would do, under circumstances like those shown by the evidence. It is the failure to use ordinary or reasonable care” (Mathuray, 2017)
Over the past decade there has been a steady increase in the number of malpractice claims brought against health care providers in South Africa specifically in maternity care; and in the monetary damages awarded to plaintiffs.
Although numerous studies report on the impact of medical negligence claims on the services rendered; the financial consequences and the individual medical practitioners involved, minimal research was found on the experiences of private midwives who were sued because of adverse maternal and/or neonatal outcomes.
The following questions arose:
The researchers aimed to explore and describe the lived experiences of private midwives when a medical negligence claim was instituted against them. Understanding these experiences assisted the researchers to formulate guidelines for midwives working in private practice.
A purposive sampling technique was used and private midwives who met the inclusion criteria were invited to participate in the study. A qualitative phenomenological approach was used (Burns and Grove, 2005: 61-80; Creswell, 2014:51). Phenomenological interviews were conducted with midwives working for midwives. Audio-recordings were transcribed verbatim; organized into themes and sub-themes and checked by a private researcher using Tesch’s steps of analysis as described in Creswell (2014:155-156). Lincoln and Guba’s criteria (1985:290) for trustworthiness were applied to the study. These interviews were followed by a semi-structured interview with 8 participating midwives.
Main categories were identified and guidelines for the private midwife involved in a medical negligence claim, was formulated.
KEY CONCEPTS: Midwifery, Experience; Registered nurse/midwife: Private nurse/midwife; Private hospital; Nursing/Midwifery care, Pregnancy, Labour and birth, Postpartum period
The participants did not know where to find a legal team to assist them; and all expressed fear of the litigation process; shock and disbelief, and extreme despair when they received the summons of claims that implicated them directly in a medical-negligence case. None of them had ever been in a court nor had they given evidence in a litigation case before. The participants were fearful and scared because of the unfamiliarity of the courtroom and the legal jargon used: “I was so confused with the legal language; I think I was in shock; I had to sit with a dictionary to read the documents”. One midwife stated that she was assisted by the legal team of the back-up obstetrician, but that she had “trust issues”. She was scared that the back-up team of the doctor would “stab her in the back”.
Fear of litigation resulted in the private midwives to practice defensively, and to call the back-up obstetrician prematurely or opting for a caesarean section when labour is slightly prolonged to avoid being sued. Oosthuizen (2015) argues that the health care providers start to practice defensively instead of with compassion in order to avoid complaints and medical negligence claims. “The threat of liability is avoided by engaging in assurance or avoidance behaviour.” Oosthuizen 2015, p.278).
The participants all became emotional and cried during the discussion. They felt like a bad clinician and begged the researcher not to talk out about the issue. They expressed regret that they did not take legal issues more seriously when writing statements or communicating with clients after an incident.
Midwives come from a caring and relational paradigm and midwifery nursing care is aimed at what ought to be done in each situation. Caring in midwifery is based on the attitude of nurturing accompanying the procedure being performed (van der Wal, 2005).
An adverse outcome, especially those that result in perinatal deaths or long-term disability, is an emotion-laden event, often resulting in emergency management and care. If the mother delivered in an MOU, she or the baby needed to be transferred to higher levels of care; often another private hospital.
The participants in this study, all felt that they provided sensitive and supportive care, amidst their own feelings of intense grief. They wanted to console the patient after the incident and expressed the desire to help parents during difficult situations. They found it difficult to find the right words or guide the distraught couple, especially because they blamed themselves for the adverse outcome, even if the event was not within their ability to predict (cord around the neck or shoulder dystocia).
Considering their compassionate involvement and guidance of the family, the participants had mixed emotions when they were subpoenaed, yet still felt that they demonstrated concern, competency and compassion despite their own self-doubt. The participants blamed themselves, but “hoped” that the patient would “understand” what transpired.
The relationship between a midwife and a pregnant woman is a special one. A trusting relationship between the couple and private midwife is formed where the woman’s needs and expectations are met. If the private midwife is unable to be with them for the duration of the labour, they feel neglected and uncared for.
One patient complained to the management of the hospital because of this but did not tell the private midwife how she felt. In this instance, the patient did not understand that the private midwife was not employed by the hospital but worked as an independent practitioner. When the manager then confronted the private midwife, she felt violated because “the hospital is not involved, I am independent”. However, when the same patient later instituted a claim, the private midwife expected “management” to become involved.
One midwife expressed her disappointment in not trusting her instinct and she felt manipulated by both the referring doctor and the client. The doctor instructed an induction of labour which the midwife knew was not according to protocol, yet she performed it.
One private midwife stated that she could not comprehend being reported for negligence when she did nothing wrong: “I could not believe my eyes; they were suing me for malpractice, but she developed postpartum haemorrhage!”. Another participant was investigated by SANC and was cleared of all wrongdoing, yet the clients still pursued the case.
Communication with the new parents forms the cornerstone of the midwife’s relationship with them. And because of the unique position of the private midwife in this personal intimate healthcare system, she spends extended time periods talking with them and hearing their concerns, feelings and needs. In private midwifery care, the midwife has fewer patients, is less hurried and less medically oriented.
In the event of a traumatic birth experience, the conversations may be difficult, because of the emotions such as fear and anxiety, anger, hostility and blame. The participants expressed their hesitancy in opening to other new clients because of “what they knew [the court case]”. The communication was guarded and inhibited the fostering of a new relationship (Sumbane, et.al: 2017) “Suddenly I was scared to trust the client – when is she going to hold what I said against me?”
Although the focus of the study was on the midwife’s experience of a medical negligence claim, the issue of the relationship with the obstetrician came up in every interview.
In selecting a back-up obstetrician, the private midwife approached a medical practitioner who shared the same philosophy of care, namely that normal uncomplicated women should be under the care of a midwife. This obstetrician then committed to act as back-up physician in case of emergencies.
Participants described receiving inconsistent messages from the back-up obstetrician where on the one hand they would express support, but in discussions with attorneys, would blame the midwife for the adverse outcome. The private midwives were all cautioned by their lawyers that the obstetricians would blame them for the outcomes, regardless of their own involvement in the case. “Suddenly we are enemies – I thought we were a united front”.
One participant was in the operating room during a caesarean section, after the claims were instituted. She overheard the back-up doctor discuss the case and when he said that she is pathetic and managed the case poorly. “The back-up doctor did not even look at the notes.”
One private midwife defended the doctor who broke off all contact: “I still don’t think that we were negligent; we both took decisions totally out of character. The doctor was perhaps inexperienced and panicked.”
Not all midwife-obstetrician communication was complicated, and, in a few cases, the expert obstetrician would defend the actions of the private midwife, not faulting her for the outcomes.
The participants noted that midwives in general and private midwives in particular, are not offered any counselling or legal advice after they had an adverse event or even after a disciplinary hearing. This impacted negatively on the relationship between the private midwives and hospital management, as well as between hospital staff and private midwives.
Considering that they are “private” the reluctance of the company to be involved, is not out of the ordinary. Hospitals also will not get involved in claims against a private medical practitioner either. The private midwives felt however, that “management should have supported us – even if they only gave us some advice”. The private midwives felt that the management did not understand or care about the issue because the midwife was “private.”
Private midwifery services are complex and demand effective management (Corkett & Ribenfors, 2010:526). It is clear from the interviews with the participants that they themselves have trouble in understanding that the hospital carries no responsibility to support them emotionally or financially when a medical negligence claim arises because the private midwife is not an employee of the company.
Considering their own insecurities and lack of knowledge and understanding of the legal profession, the private midwives felt uncared for and unsupported. “I truly wanted to trust the attorneys but “knew” that they are just in it for the money”. The fact that almost all attorneys wanted to settle the claim as soon as possible, reiterated that the lawyers did not believe them or did not understand the issue at hand. It did not help when one of the participants overheard the plaintiff attorney saying that “midwives lie and sleep on duty”
As with the midwife-patient relationship, the effectiveness of the lawyer-client relationship depends on the midwife’s absolute honesty about the events surrounding the legal claim. The participants felt that they were honest when they discussed the issues at hand. In hindsight though, they all felt that they should have elaborated more during the discussions because they felt the lawyers did not truly understand what she explained.
One midwife in particular felt violated when the Plaintiff’s lawyers suggested twice that she turns state witness – to testify against the back-up obstetrician who had sufficient insurance to settle the claim. “They saw it as a way of getting money!” Midwives cited that they feel exposed and not supported during legal proceedings.
The participants in this study all acknowledged that they were grieving the loss of life, or the loss of a “normal” life in the case of a challenged child. They were in different stages of the grieving process; from absolute devastation and despair, to aggression or depression; all impacting on their ability to cope.
The participants described their struggle to cope with their own reactions and emotions. Negative emotions were feelings of helplessness, hopelessness and sadness, which made communication with their new clients more difficult.
The participants in this study would revisit the incident, analysing their actions, while looking for obvious causes that they had missed, or issues that were “grey”. Some had internalized the allegations; blaming themselves for acting or not acting in a certain manner to avoid the outcomes. The feeling of blame became more intense as the scrutiny by the attorneys or expert witnesses started; especially when they realized that they were transgressing protocols and policies.
Adverse outcomes in midwifery clinical practice is not the norm and affect health professionals on a deep emotional level. This is evidenced by the following quote from a participant: “I had nightmares of the birth, and every time it was worse. I would wake up crying and screaming for help; with palpitations… drenched in sweat”. Oosthuizen (2015) and Swift (2013) found that nurses that were involved in unintentional nursing errors experienced intense emotional response that affected their personal and professional lives, and were left scarred by the experience, because of their own fallibility.
The private midwife would, after an unfavourable incident, attempt to avoid the details of the matter in fear of negative publicity or defamation to those involved. Continuous interaction with the attorneys to clarify issues and explain her actions, resulted in emotions of anger, resentment, embarrassment, fear, desperation, and depression, especially when the only solution is to either go to court, or to settle a case.
The participants related how they coped with the issue when the researchers asked whom they turned to after the incidents. Some did not want to discuss the issues outside work because of the “humiliation” they felt; others [especially the single participants] felt that they could not burden the family and friends because they did not understand the spectrum of their work; and did not want to endlessly explain what happened and what was “normal” situations.
They felt the same feelings when they had to disclose the incident in court – feeling that the attorneys had no perception of what midwifery practice entails and that the plaintiff’s family just wanted “revenge”.
Some participants did not want to respond to the question and avoided eye contact. This prompted the observation: “perhaps you are not coping after all?” The participants then responded by a low tone of voice: “I barely cope” and “I hate myself for putting my family through this.” None of the private midwives went for counselling.
This theme was emotionally charged, and the participants all showed their emotions, including tears, anger or withdrawal during recollection of the impact of the medical negligence case on their personal lives.
All the participants recalled having sleeplessness, nightmares and flashbacks. This is not an uncommon result of trauma in the healthcare settings (Gates, Gordon & Gillespie (2011: 59-67) and may result in sadness, frustration, anxiety, irritability, apathy, self-blame and helplessness.
Work-related stress can impact on the private midwife’s family by decreasing their overall quality of life. Hood et al., (2010:268) argued that midwives feel unsafe at work, when their work environment is driven by fear of litigation.
Several participants became discouraged and wanted to leave midwifery because they are afraid of being sued. They felt like giving up or leaving the country, where they are less known.
Family life did not immediately settle down at the end of the trial either. The participants who were found not guilty, were relieved but everyone wished the incident never happened. They regretted their decisions to act or not act in the situation. “I always knew I did nothing wrong, but……long silence ……. I wish it never happened. How will I ever restore my credibility?”
A “good service” is characterized by midwives providing support for each other and integrate roles and responsibilities with respect and understanding. In most private hospital settings, the private midwives worked together with the staff midwives as peers and colleagues as a united group. Foster & Hafiz (2015:295) and Shorter & Stayt (2009:164) found that health professionals coped with grief by confiding in peers and seeking peer support; which resulted in a sense of camaraderie; and strengthened work and personal relationships.
The private midwives found most of the staff midwives to be mature, respectful, supportive and competent [Du Plessis & Roets, 2014: 1209]; until the “event”. The private midwives in this study, felt ostracized by their peers. Other midwives would stop talking when they came closer or would advise clients to rather use another midwife because “this one is involved in medical negligence cases”. In one instance, the private midwife walked in on another private midwife discussing the incident in detail, despite not being there at all.
One private midwife was extremely distraught when she found out that her colleagues advised clients to Google her to “see for themselves”; some would warn clients not to go to her.
Bullying in the nursing profession is a well-known; poorly understood phenomenon, and researchers have found that “Nurses are really vicious to each other” (Dellasega; 2012). Midwifery is no exception; the issue of bullying by peers is profession wide.
The private midwives often felt uncared and blamed for the adverse outcomes. Some staff midwives refused to assist them during labour, despite an agreement with the private hospital, because of the pending litigation. Mc Vicar [2003] argue that lack of colleague support during stressful times was a major contributor to workplace stress and the private midwife’s decision to give up independent practice.
Some midwives internalized the allegations of negligence, believing their whole career had become worthless. Social media contributed to their feelings of inferiority.
If the medical negligence claim reveals malpractice or negligence, punishment is imposed by the South African Nursing Council, which include suspended sentences, removal from the roll or register, being sent for refresher courses or paying of a fine. In the case of the private midwife she may lose her birthing rights at the hospital or MOU and other institutions may refuse to issue rights because of the fear of litigation. Medical aids are furthermore reluctant to pay for services and professional insurance is hard to come by.
Professional practice regulations; the South African constitution; the Batho Pele principles, the patient’s bill of rights, the South African Nursing Council and DENOSA reiterate the importance of the midwife to render safe and competent care to pregnant mothers. It remains the private midwife’s responsibility to update her knowledge and skills – thus functioning privately within a legal-ethical framework. The private midwife thus has a legal obligation to render safe and competent care.
Few health care professionals know or fully understand the Acts and regulations governing their profession, having had minimum exposure to them during undergraduate training. It is especially true concerning the legislation involved in medico legal malpractice incidents involving the healthcare professional.
In this study, it was evident that the midwife in independent practice, suffer from emotional harm, lack of support, self-doubt and anxiety when confronted with a medical legal claim. The psychological trauma and workplace bullying resulted in apprehension in the clinical environment and the lack of knowledge of the legal processes contributed to the feelings of despair.
Midwives should be prepared in advance so that they can respond appropriately to a claim. But it is also means to apprise private midwives of the magnitude of what they have just become involved in and warn them that a lawsuit will require their time, effort, and focus. While most lawsuits are resolved before trial, a few do warrant a full-blown trial and so require an additional block of time and attention from the private midwives.
Full article and references available at request.
Diana du Plessis is an independent Midwifery consultant and researcher. She specializes in midwifery and neonatology and lectures widely to nursing professionals and academic audiences on a national and international level.
She is a passionate childbirth educator and national spokesperson on breastfeeding. She is the author and co-author of various nursing and midwifery publications (books and peer-reviewed articles).
