Doctor should not postpone education about caesarean section

BGH: Expectant mother must be able to decide on treatment

With concrete indications of an impending problem birth pregnant women must be informed about a caesarean section as an alternative treatment at an early stage. If the education takes place only when only a "hasty caesarean section" comes into question, this is fundamentally a medical malpractice, for the doctors and clinics can adhere to, the Federal Court (BGH) in Karlsruhe in a Monday, November 12, 2018, published Judgment (Az .: VI ZR 509/17).

The lawsuit was a child born on 23 November 2006 with brain damage. The mother had previously presented with regular labor in the clinic in Schleswig-Holstein. However, after the woman had received labor-promoting remedies, the child was several times a menacing drop in heart rate found. The third time, the treating doctor noticed that the cervix had not yet opened. She ordered a so-called "urgent caesarean section" and clarified the expectant mother about the necessary treatment.

In the case of "urgent caesarean section", the child should be released within 30 minutes from the time of the decision on the caesarian section. The education of the pregnant women is relatively scarce given the urgency. In an emergency C-section, however, the birth should be within 20 minutes. The education about the procedure performed under general anesthesia is then only minimal.

In this particular case, the pregnant woman panicked because of the imminent "urgent Caesarean section". She rejected a bladder catheter and the oxygen supply via a nasogastric tube. She also did not want to take a sedative to "improve cooperation". The daughter was finally born twelve minutes after the expiration of the applicable for "urgent caesarean sections" 30-minute period.

The mother's brain damage was attributed to her late-stage caesarean section. Moreover, she had not been informed in time about the advantages and disadvantages of the caesarian section. She was not able to decide freely on the individual delivery methods. That she was informed only with the order of the "urgent caesarean section", led to a delay of the delivery.

In its judgment of August 28, 2018, the Federal Court of Justice stated that, in the case of a normal birth, no explanation about a caesarean section has to be given. In the case of concrete signs of a problem birth, however, the doctor must carry out a preliminary education about a caesarean section as a treatment alternative. If he does not clarify this in good time, liability will be considered. The pregnant woman must be able to choose about different delivery methods and their risks as well as their advantages and disadvantages. This requires the self-determination of the expectant mother.

Here, the precautionary education about the caesarean section as a treatment alternative should have taken place at the latest at the time when the child already had a second heart rate and not for the third time a bad heart rate.

The pregnant woman had only been informed when a "hasty Caesarean section" was necessary. At that time, however, there was no treatment alternative, the BGH complained. If the failure to provide timely information leads to a delay in the birth, physicians are liable.

The Higher Regional Court (OLG) Schleswig is therefore now to examine to what extent the still necessary education has led to the 30-minute deadline and to what extent this is attributable to a prone to unacceptable behavior of pregnant women. Should at least be a complicity in the clinic, but the mother must prove that the deadline has led to the birth defect.

According to settled case law, there is a so-called reversal of the burden of proof and thus a burden of proof for the clinic only with gross treatment errors. The BGH did not see such a thing here.

Similarly, the BGH had decided to provide information on a caesarean section on October 28, 2014 (ref .: VI ZR 125/13, JurAgentur report dated 16 February 2015). According to this, doctors must inform the patient of the risks, advantages and disadvantages of the procedure early on in the "serious option" of a Caesarean section. If the danger situation then actually comes to a head, appropriate information, but not a new education is required.

In a ruling of May 17, 2011, the Karlsruhe judges emphasized that information about a caesarean section should not be given until the child is actually at risk (ref .: VI ZR 69/10, JurAgentur report dated July 1, 2011 ). Although the expectant mother should not be burdened for no reason with potential dangers and risks of the various delivery methods during the birthing process. If a cesarean section comes into consideration for concrete indications, the expectant mother must be informed about it. fle / mwo