Dov Apfel.

Birth Injury Information
Dov Apfel.
Press Release


The Montgomery County Sentinel.

Vol. 144, Issue 14 Thursday, October 28, 1999

A Legal Discussion on Medical Malpractice:

Is Vaginal Birth After Cesarean Safe?

By Dov Apfel

Dov Apfel.
"Once a cesarean, always a cesarean" was the general rule in obstetrical practice throughout the United States for decades. This meant that, once a woman delivered a child by cesarean section, she would deliver all subsequent children by cesarean section. The wisdom of this long-standing practice was questioned in the 1980's, when some physicians began to express concern over rising cesarean delivery rates. At the same time, hospitals, health maintenance organizations and insurance companies began to search for ways to improve profitability and halt increasing medical costs. Vaginal Birth After Cesarean ("VBAC") was viewed as a solution to both problems, prompting more doctors to actively encourage patients to consider a trial of labor, as opposed to a repeat cesarean section.

Whether these patients are being adequately informed about the medical risks before they agree to accept their physician's recommendation to attempt a VBAC, and whether they are being properly managed during labor, are critical questions that are being actively debated today within medical and legal communities. VBAC can result in serious maternal complications and tragic consequences for the baby, including death and long-term neurologic impairment.

The factual scenario that lawyers may be asked to evaluate is straightforward. Mr. and Mrs. Parent were expecting their second child. Their first child was delivered via a cesarean section. Although Mrs. Parent was expecting to have another cesarean delivery, her obstetrician told her that it would be safe for her to attempt a trial of labor and to deliver her second child vaginally. While in labor, Mrs. Parent's uterus ruptured and her baby's heart rate suddenly dropped. After some delay, an emergency cesarean section was performed, however, Mrs. Parent needed a hysterectomy and her child suffered a permanent brain injury.

When uterine rupture occurs, blood flow to the fetus is suddenly disrupted, and the oxygen content of the blood perfusing fetal tissues is substantially reduced below normal levels. The fetus may develop critical changes in its respiratory gas and acid-base status, which can lead to cell death in brain tissue and compromise the function of other vital organs. This is why a failed VBAC can have major consequences to the fetus. Clinicians must be prepared to act swiftly when the uterus ruptures. Unfortunately, the clinical course of a woman experiencing a uterine rupture is often unpredictable. Some patients will report a sudden sharp pain, while others will have no pain, particularly those who are given narcotics or epidural analgesia. The only sign may be the onset of nonreassuring or ominous fetal heart rate patterns. Sometimes a pelvic examination will reveal a loss of station or fetal parts will no longer be easily palpated. Regardless of how the uterine rupture is manifested, some clinicians have found that a response within 17 minutes of the onset of a prolonged deceleration of the fetal heart rate is needed to avoid fetal brain damage and death,

Clearly, every prudent and responsible physician recommending a VBAC has to tell his or her patient that the most serious complication during a trial of labor is uterine rupture. Since the cause of uterine rupture is usually unknown, physicians also should make it clear that they cannot predict which women who are allegedly eligible for a VBAC will succeed and which women will fail a trial of labor or suffer a uterine rupture. Further, a VBAC recommendation should not be made without an analysis of the reasons for the prior cesarean deliveries, since the prior indication for a cesarean delivery can have a significant impact on the success rate of VBAC candidates. Women who present with a prior cesarean that was performed for a reason that is unlikely to recur in the present pregnancy, or who had at least one successful vaginal delivery, have higher success rates.

There are other factors that parents should consider. First, is the VBAC being recommended to a patient by a physician who was planning to be present or immediately available throughout active labor? Second, is the physician capable of interpreting "nonreassuring" or "ominous"the fetal heart rate tracings, recognizing the signs of uterine rupture, and performing an emergency delivery? Finally, is the delivery scheduled to occur at a hospital with 24-hour anesthesia and staff available to perform an emergency or "crash" cesarean delivery?

Parents should not hesitate to ask their doctors: (1) how many of the doctor's patients have refused a VBAC? (2) how many patients who attempted a VBAC were successful? (3) why some failed? (4) whether uterine rupture ever occurred? (5) how often uterine rupture occurred in patients with similar clinical characteristics? (6) how the doctor will know if a uterine rupture occurs? (7) how quickly an emergency cesarean can be done at the hospital where the delivery is planned? (8) whether the doctor will use oxytocin to induce or augment labor? (9) if so, whether oxytocin will increase the risk of uterine rupture? (10) whether the clinician will use epidural analgesia? (11) what was the indication for the prior cesarean? and (12) what is the likelihood of its recurrence?

Patient counseling for VBAC candidates cannot be based only on clinical factors known during the early stages of pregnancy. Circumstances can change as the pregnancy progresses, and a patient may find that she is less enthusiastic about attempting a VBAC as she approaches or passes her estimated due date. Thus, the clinician must reassess the potential success of VBAC as the clinical picture changes. For example, one circumstance that can change is that the patient may pass her due date. Thus, in addition to the risk factors normally accompanying any VBAC candidate, such a patient also will face the risks associated with a postdated pregnancy.

Parents must also try to determine if the physician recommending the VBAC is under any pressure to reduce his or her cesarean section rate. Some physicians may have economic incentives to recommend a VBAC, particularly if the expectant mother is a patient of an HMO. In this era of managed health care, it is no secret that HMO's are driven to reduce costs. One of the ways to reduce costs is to create financial incentives for physicians to reduce the number of cesarean sections. Similarly, hospitals may be pressuring attending physicians to reduce their cesarean section rates.

The economic pressure to recommend VBAC's and to reduce c-section rates has not gone unnoticed within the obstetrical community. In its July 1999 Practice Guideline, The American College of Obstetricians and Gynecologists ("ACOG") made several references to the fact that some physicians may be pressured into suggesting a VBAC. In fact, ACOG observed that some third-party insurance companies and HMO's believe that VBAC should be mandatory, and that it is safe for all women to attempt a trial of labor. ACOG is strongly opposed to any mandatory trial of labor imposed by a third party. Mandatory VBAC's, according to ACOG, are inappropriate, particularly because "physicians may find themselves pressured to attempt trial of labor either in situations that they consider to be unsuitable or with patients who do not desire the procedure."

Elective repeat cesarean delivery is, and should be, a fundamental part of modern obstetric care. Some patients will have absolute or relative contraindication to VBAC. Some hospitals will be incapable of meeting standards for emergency delivery. Some patients will present with indications for their primary cesarean that make their chances for a successful VBAC less than ideal. Some women who start out their pregnancies as candidates with favorable conditions for a successful VBAC may develop maternal or fetal conditions that modify their chances of success. All physicians even those who are VBAC advocates must recognize that these circumstances exist and that they must be fully discussed with the patient. The patient is entitled to information and data that is objective, current, practical, and updated, as their circumstances change during pregnancy. It is the patient's right not the physician's to decide how much risk the patient is willing to take and what is an acceptable VBAC success rate.

In my next column, I will discuss the general risks associated with maternal infection in pregnancy and the procedures available to prevent the tragic consequences of early-onset neonatal group b streptococcus sepsis.

Dov Apfel is a principal in the law firm of Joseph, Greenwald & Laake, P.A. 6404 Ivy Lane, Suite 400, Greenbelt, Maryland 20770. He can be reached by phone at 301-220-2200, or by e-mail. Mr. Apfel is contacted by lawyers and families throughout the United States to assist them with potential medical malpractice claims involving children who have died, or who sustained irreversible brain damage. He is the former Co-Chair of the Birth Trauma Litigation Group of the Association of Trial Lawyers of America and a member of the Board of the Medical Negligence Section of the Maryland Trial Lawyers Association.

Please Note:
This web site is not intended as legal advice on cerebral palsy, and is not a substitute for obtaining guidance from your own legal counsel about cerebral palsy litigation. It provides general educational information about the standards of care and causation issues that can arise in obstetrical malpractice and cerebral palsy litigation. Readers of the articles contained within this web site should not act upon the cerebral palsy information without first consulting with a lawyer who is experienced in evaluating and litigating cerebral palsy and obstetrical malpractice cases. Mr. Apfel is admitted to practice law in Maryland and the District of Columbia. When Mr. Apfel is asked to participate in cerebral palsy litigation filed in other states, he will associate with, and act as co-counsel with, an attorney licensed in that state who is familiar with the local laws and procedures.
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