A high-risk pregnancy could present with additional supervision, require specialist involvement or have a more detailed care plan. Understanding the expectations around its management, plus how that plan was implemented and any deviations from it, could become important if challenges to the standard of care are raised.
Clinical negligence does not arise from having a high-risk pregnancy or birth outcome. Obstetric care is judged on the information known at the time, the actions taken in response, and whether those actions fell significantly short of what a reasonable professional, acting in the patient’s best interests, would have done. That is why self-advocacy is less about challenging clinicians and more about ensuring that decisions, concerns and any deviations from a care plan are clearly acknowledged and documented.
Understanding what substandard obstetric care means
The phrase ‘substandard care’ is often wrongly assumed to encapsulate any aspect of treatment that a patient or anyone close to them finds upsetting or disappointing. When it comes to clinical negligence, the focus is more on whether care was below an acceptable standard.
This assessment is not straightforward. What is reasonable for one group of patients will not always be reasonable for another. A high-risk pregnancy classification will affect what interventions are appropriate, how much specialist input is necessary, and the nature of any reviews.
A patient is not expected to judge whether a decision about their care was reasonable in isolation. However, it is important for them to understand what the care plan is, what should happen next, and note if the care they receive differs significantly from what has been agreed.
A care plan should be able to be followed
The value of a maternity care plan is often in its ability to be followed. This enables the patient to know what has been agreed, understand what might change that agreement, and raise concerns if the care provided departs from it. Some of the key considerations are likely to centre on who is reviewing the pregnancy, what investigations are being undertaken, when the patient can expect to see someone and when those arrangements might change.
Where any appointment, review or investigation mentioned in a care plan does not take place, the patient is entitled to ask why. A change to a care plan is not enough, in and of itself, to demonstrate that maternity care has been substandard. Clinicians are sometimes obliged to adjust their recommendations in light of new information, and it is for the patient to ensure they understand the reasoning behind any significant adjustment to their care.
Informed consent is part of the legal considerations
Informed consent goes beyond confirming a procedure on paper. A patient should be in a position to make a meaningful contribution to a discussion about their care. That discussion should include the risks and benefits of any proposed intervention, plus any reasonable alternative, including the option of doing nothing.
For a patient with a high-risk pregnancy, this can be particularly important. Where major recommendations change, or where options previously thought viable are ruled out, a discussion about what has changed is appropriate.
A claim for clinical negligence will often include an assessment of whether a patient was genuinely in a position to consent to any recommendation and what alternatives were presented. That is why contemporaneous documentation of conversations is often useful. A patient is not expected to accept everything, but they must be in a position to understand what they are consenting to.
Patterns that may support a claim for maternity negligence
A single procedural or administrative oversight, or one difficult conversation, is rarely enough to demonstrate that maternity care has fallen below an acceptable standard. There are patterns that, when spotted, should prompt a patient to ask further questions.
These include situations where previously undocumented concerns are raised multiple times with little response or where seemingly reasonable recommendations are inconsistently applied. They also include disagreements between different midwives or obstetricians and situations where a patient is asked to accept a recommendation without understanding the reasoning. A pertinent concern might also arise where an issue that required senior review was not formally escalated and followed up.
A patient is not expected to know what constitutes a pattern. These are suggestions for what might prompt a conversation with a midwife or obstetrician about what is going on. They are not intended to suggest that the patient is in a position to second-guess the medical team. If a concern has been raised, it is not the patient’s responsibility to follow through and check that it has been formally escalated and reviewed, but they are entitled to ask who has been reviewing an issue and what action has been taken.
Keeping a useful record
It is often a good idea to keep a contemporaneous record of any important conversations, particularly if a patient’s pregnancy is proceeding under the supervision of a number of clinicians and the care plan is subject to frequent adjustment. This is less about being able to use it as evidence against a hospital and more about keeping a chronological record of what has been said and what actions have been agreed. It also helps prevent potentially important questions from being forgotten.
What should be recorded is often a matter of personal preference, but the issues covered should include the date, the nature of the discussion, the clinician or team involved, the decision reached, and any next steps. This can be augmented by retaining the letters, appointment scheduling details and any other documentation provided to the patient.
If a conversation becomes significant, particularly if it has the potential to develop into a complaint or clinical negligence claim, a contemporaneous record can help a solicitor understand what the patient remembers and how their recollection might fit with the available paperwork. It is not a replacement for the medical records, but it can help jog a patient’s memory.
When concerns persist after maternity care
Sometimes the concerns raised are addressed, either through direct discussion with midwives or obstetricians. Other times, clarification does not resolve the issue, whether because a satisfactory explanation is not forthcoming or because there is a dispute over what occurred.
Where a baby has been lost and there are concerns that the standard of maternity care may have contributed to the loss, families are well-advised to obtain specialist advice about whether a Stillbirth Claim should be investigated. This is not because there is an assumption that the standard of care was substandard, but because it enables families to understand whether the circumstances meet the relevant legal tests for causation, taking into account the necessary medical evidence.
A complaint to a hospital can request an explanation and an apology. An internal review can assess the standard of care and patient outcomes. A clinical negligence claim investigates whether a legal wrong has been committed. A complaint or review does not always lead to a claim, and a claim does not always follow from a complaint, but both can be undertaken simultaneously.
How a clinical negligence investigation works
A solicitor instructed to investigate a claim for maternity negligence will need a chronological overview of events, as well as a full set of medical records. This usually involves obtaining antenatal notes, correspondence, test results and monitoring, labour and delivery records, and any other documents relevant to the circumstances. The solicitor will then assess the documents in the context of the allegations under consideration and identify any additional evidence that may need to be obtained.
Where a patient is considering making a claim for clinical negligence, an independent medical expert may be able to provide an opinion on whether the standard of care fell below an acceptable standard. They can also comment on whether such a shortfall in care caused or contributed to the patient’s loss or suffering. These are two separate issues, and the documentation of any expert opinion should reflect that.
Evidence that care was inappropriate is not sufficient, in isolation, to demonstrate that a patient is entitled to compensation. Conversely, a poor outcome is not enough to demonstrate that care was substandard. Either finding in isolation will prompt a solicitor to investigate further and obtain additional evidence.
Clinical negligence claims and NHS Trusts
Where a claim for clinical negligence is made against an NHS Trust in England, the Clinical Negligence Scheme for Trusts (CNST) should be aware of it. The CNST website provides guidance on how claims are investigated, including how evidence, allegations and responses are received and considered. This process is separate from any complaints, reviews or legal claims.
Complaints, reviews and legal claims are not the same thing
Families can sometimes be confused about the difference between a complaint, an internal review and a clinical negligence claim. It is important for them to understand that these are separate processes, even when they occur simultaneously.
A complaint to a hospital can be aimed at obtaining an explanation or an apology. An internal review can identify areas for improvement in patient safety. A clinical negligence claim applies legal tests to the circumstances. It is possible, therefore, for a family to be satisfied with an internal review while also believing that a claim for clinical negligence is appropriate. It is equally possible for a complaint to raise pertinent issues without providing sufficient evidence for a clinical negligence claim. Understanding the differences can help a family determine what they need to do next.
Why timing can be an important consideration
Where a clinical negligence claim is being considered, it is essential for the family to obtain specialist legal advice. Clinical negligence claims are subject to a number of limitations, including time limits for bringing a claim. A complaint to the hospital or internal review process should not be assumed to provide cover for any potential claim.
Where a family has concerns about maternity care, identifying any limitations issues and assessing the evidence should be done at the same time as obtaining advice. It is not uncommon for a family to be encouraged to instruct a solicitor while also discussing the limitations and the likelihood of being able to demonstrate that the standard of care was substandard.
Advocacy is strongest when it encourages good communication
A patient with a high-risk pregnancy rarely needs to be an expert in obstetric care to be able to advocate for themself. A practical approach is to focus on establishing clarity. What is the care plan? Who will be involved in reviewing the pregnancy? Have things changed? If so, why? Has a concern been raised and escalated? Understanding these points can help a patient communicate more clearly about their care, as well as create a useful written record if a concern needs to be formally raised at a later date.
It is also important that a patient understands the limits of their role in terms of advocating for themself. It is not their responsibility to second guess clinicians. It is their responsibility to make sure that they are aware of what has been discussed, who has been involved, and that concerns have been escalated to the relevant personnel. If there is a dispute about what has been said or done, the patient should ensure that they have a clear record that can be used to challenge any incorrect statements.
The same principles apply if a patient wants to raise concerns about their maternity care, whether during pregnancy or after they have left hospital. It is a question of identifying facts and asking appropriate questions, leaving any clinical or legal judgment to the relevant professionals.
