There is no way of eliminating risk in childbirth. Taking carefully considered risks is a part of all clinical practice. But there are different kinds of risk: the risk of harm to a woman or her baby, the risk to the midwife of disciplinary action resulting from her decisions and the risk to the organisation of an expensive lawsuit.
Defensive practice is concerned primarily with minimising the risks of litigation, in the belief that this will also ensure the best professional practice and thus be best able to achieve the health of women and children. Unfortunately the decisions that are most 'defensible' in a court of law may not always be those that are in the best interest of the woman and baby, nor those that draw deepest on the experience and skills of the midwife.
Defensive practice has had a profound impact on midwifery, dramatically affecting the way maternity services are provided. The costs of lawsuits can be substantial, and organizations are understandably concerned to avoid them. However the defensive practices they are increasingly introducing to reduce their exposure to litigation are reducing the number of normal births. Not because the practice of normal birth is riskier (the evidence shows it to be safer), but because it is more difficult to defend.
The legal process distorts clinical practice
The legal process favours decisions that are most fully documented (particularly because they can happen so long after the actual events), so defensive practice prioritises record keeping. This is despite the fact that the demands of extensive form-filling may have taken a midwife's attention away from a woman at a critical time.
Lawyers also feel most confident if a practice has already been successfully defended in court, which means that practices with a history of litigation may be preferred over practices untested in law, regardless of the clinical evidence. And juries are frequently encouraged to see technology as superior to human abilities and judgment, making technological intervention more defensible than than non technological equivalents. Machines increasingly produce their own records, which are presented as more 'objective' than human memory, even though what they actually record about the birth is very limited by comparison.
The causes have nothing to do with good midwifery practice
The growth of defensive practice parallels a huge increase in litigation following the revision of the Legal Aid Rules in 1990. Once it became possible to get state funding to make claims on behalf of infants, the number of claims rocketed. The ensuing fear of litigation made it equally inevitable that a more formal approach to risk management would be adopted and this has resulted in a 'just in case' approach to care – defensive practice.
Despite defensive practice becoming commonplace, the health and safety of women and baby has not noticeably improved. For instance, the number of babies born with cerebral palsy remains at roughly 2-3 per 1000 births.
Tips and tricks
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Keep thorough records - especially of any decisions you make that might expose you or your organization to risk of litigation. Your records should allow you to describe what happened, and explain how you made your decisions, up to twenty years after the events!
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Question 'defensive' practices in your organization - Do they compromise the interests of women and babies? Do they promote technology over human judgment? Are there other ways of doing things that could be equally well defended?
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Litigation feeds on mistrust - a woman is most likely to initiate a lawsuit if she feels that she was not given reliable information to make decisions, and if the trust between her and her midwife was compromised during labour/birth.
Further reading
Aslam R (1999) Risk management in midwifery practice
British Journal of Midwifery 7 (1): 41-44
Bates C
Assessing and managing risk in midwifery practice. In: Boyle M (ed) (2002)
Emergencies Around Childbirth Radcliffe Medical Press, Oxford
Symon A (2001) Chapter 4 Defensiveness. In:
Obstetric Litigation from A-Z Quay Books, Mark Allen Publishing
Wilson G, Donovan K (2000) Developing a systematic approach to monitoring adverse events
NHSLA Review Issue 17: 10-11
