Shouldering the burden of risk

By Dominic Wilkinson @NeonatalEthics

The UK supreme court last week awarded a woman £5 million in compensation after her obstetrician failed to warn her of a risk that she would have difficulty delivering her baby. Over on the JME Blog Kirsty Keywood discusses some interesting and important legal elements of this judgment for the practice of informed consent and how this will be evaluated in negligence claims.

However, the case raises one important ethical issue. Several expert witnesses in the Montgomery case testified that informing women of even very low risks of complications of vaginal birth would likely lead to a significant increase in the number of women choosing elective caesarean section.

If that is true, would it be justified for doctors to deliberately not discuss such risks?

In this specific case, Nadine Montgomery was thought to be at higher risk than normal of ‘shoulder dystocia’ – a serious and terrifying condition where the baby’s shoulders become stuck midway through delivery. This condition occurs in about 1 in 200 vaginal deliveries, but some women (for example who are small in stature and/or are expecting a larger baby) are at higher risk. (Ms Montgomery was thought to have a 1 in 10 chance of this condition.) When shoulder dystocia occurs obstetricians are usually able to deliver the baby safely using specialized techniques. However, there is approximately a 1 in 10 chance of major bleeding for the mother, and a 1 in 20 chance of a major perineal tear. For the baby there is about a 1 in 500 chance of nerve damage and a 1 in 1000 chance of either brain damage or death. So the absolute risk for Nadine Montgomery of major complications from vaginal delivery was of the order of 1.5%, and for her baby about 0.03%.

There are a number of questions that we might ask here. What level and what type of risks would affect women’s decisions about vaginal birth or caesarean section? How many women would choose caesarean? How do the risks of caesarean section compare with the risks of shoulder dystocia?

But what ethical arguments might there be for not discussing the risks of shoulder dystocia? The obstetrician involved in the case was quoted as saying that “if you were to mention to any mother who faces labour that there is a very small risk of the baby dying in labour, then everyone would ask for a caesarean section, and it’s not in the maternal interests for women to have caesarean sections” (para 13).

This suggests that the main reason for obstetricians not discussing risks of shoulder dystocia is paternalistic, ie it is a belief that the consultant knows better than the patient what would be in their best interests. The Supreme Court judges had little time for this argument. Doctors should treat competent patients as adults, capable of understanding the uncertainty and risks of treatment, of taking responsibility for their actions and bearing the consequences of their choices. It is no longer acceptable (with very rare exceptions) to “prevent the patient from making an informed choice where she is liable to make a choice which the doctor considers to be contrary to her best interests” (para 91).

However, there is a further question mentioned only in passing by the judges. The treatment options that doctors discuss with patients depend not only on their clinical judgment, but also “on bureaucratic decisions as to such matters as resource allocation, cost containment and hospital administration” (para 75). Obstetricians and obstetric departments are under considerable pressure from hospital administrators and from the wider community to reduce their rates of caesarean section. Caesarean delivery is associated with two to three-fold increased acute hospital costs (£1190-2077) compared with spontaneous vaginal delivery(£605-1065).

Whether the costs of elective caesarean section for women at some increased risk of shoulder dystocia outweigh the costs of vaginal delivery is a difficult empirical question.* For the sake of argument, though, let us assume that they do. If caesarean section were sufficiently costly a public health system could decide not to provide it for women where the risk of complications from planned vaginal delivery is sufficiently low.

Yet if the reason for not providing treatment (that some women would desire) is cost, then doctors should be open about that. Some women may choose and be able to pay the additional costs of caesarean section, an option that would both respect their autonomy and have no resource implications for a stretched public purse. Moreover, caesarean section is not judged to be at that level of expense in the UK. In Nadine Montgomery’s case it was clear from the medical testimony that if she had explicitly asked about the risks of shoulder dystocia, those risks would have been discussed. If she had requested caesarean section, it would have been provided. It makes no sense to withhold information about a potentially desired treatment on the grounds of cost, but then to be willing to provide that treatment if requested.

The Montgomery case is likely to have a significant impact on obstetric (and wider medical) practice in the UK and elsewhere. It will likely lead obstetricians to be more explicit about the risks of vaginal delivery, and may well have the effect of increasing the number of women requesting caesarean delivery.

If so, that is the price we have to pay for respecting the autonomy of women and their right to make important decisions about their health.

*The costs associated with elective caesarean delivery are complex and contextual. Costs may be multiplied, since women are more likely to deliver by caesarean section with subsequent pregnancies, and CS may rarely lead to serious complications (for example thromboembolism, placenta accreta or uterine rupture). However, since elective caesarean section will avoid some serious (and extremely costly) neonatal complications, these must be taken into account. For example, even if elective caesarean section were £1400 more expensive than vaginal delivery, this would be cheaper than a 0.03% risk of a £5 million pound payout).