New cerebral palsy research may have profound impact on medicolegal cases

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Commonly held assumptions that CP arises as a direct result of preventable adverse events during childbirth inform the current paradigm within South African medico-legal cases, in which the focus is almost exclusively on events during childbirth (intrapartum events).

Among the paper’s findings are that intrapartum trauma may constitute the final link in a complex chain of pathophysiological processes that lead to brain injury and ultimately CP.

In many cases, this causal pathway could depend on (among other things) genetic factors, as well as adverse circumstances and events during the pregnancy or after the birth. The paper suggests that the range of analysis when searching for the cause of CP should be expanded to include a wide array of known considerations.

Antenatal factors, intrapartum factors, neonatal factors, genetics, toxins, foetal priming, failure of neuroscientific autoregulatory mechanisms, abnormal biochemistry and abnormal metabolic pathways are mentioned in the paper as crucial aspects of any thorough, medically sound multidimensional analysis.

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Most high-value claims against obstetricians in litigation in both the public and private sectors are related to CP cases - on the basis of lack of oxygen to the brain during birth (intrapartum hypoxia) resulting in brain damage (neonatal encephalopathy) - and by extension, implying negligence by the obstetrician during the birth process. This has resulted in steep increases in insurance premiums, thereby threatening the discipline of obstetrics and in turn threatening the delivery of healthcare.

Currently, birth-related injuries in general and cerebral palsy in particular account for more than 40% of insurance claims against South African public hospitals. Total pay outs for cerebral palsy claims resulting from medical negligence amounted to R769m in 2016.

The findings of the new research article may therefore have far-reaching consequences in terms of how CP is handled in the medico-legal context.

The authors call for more detailed assessments in ascertaining the chains of causality in CP cases and propose that negligent intrapartum care (although unfortunate, and requiring correction) cannot be viewed in isolation as the primary driver of incidences of CP.

They caution that the current medico-legal approach may be simplistic and inadequate and that legal outcomes may be determined primarily by persuasive or emotive rhetoric on the part of the attorneys, instead of a comprehensive, holistic appraisal of the many scientific and medical factors at play both during pregnancy and delivery.