At the turn of this century, a movement began to encourage more OB/GYNs towards more VBACs. Now the tide is going back the other way. There are a number of recent studies that have indicated that VBACs are less safe than originally predicted and there has been a slow progressive movement away from the practice. VBAC’s are still being done, but in significantly lower numbers. Instead, there is a steady movement toward scheduled repeat cesarean sections instead of VBAC’s.
The Risks of VBAC
The underlying reason why VBACs are considered a high risk method of delivery is actually fairly easy to understand. It all has to do with the scar tissue that a C-section leaves on the uterus. In a Cesarean delivery the mother’s uterus and abdomen are surgically cut open to allow manual extraction of the baby. Afterwards the surgical openings are sewed back together. Just like a cut in the skin the stitched up uterus eventually heals back together leaving scar tissue at the incision site. The problem is that this area of scar tissue is much weaker than the rest of the uterus wall.
The weaker tissue at the scar site of a prior C-section becomes a major liability in any subsequent vaginal delivery attempt. Vaginal delivery subjects the wall of the uterus to significant pressure. Under this intense pressure the weaker scar site from a prior C-section is more liable to tear apart causing a rare and very dangerous obstetrical complication called uterine rupture. VBACs are high-risk because they increase the chances of uterine rupture at the scar site.
Uterine rupture is one of the most hazardous complications that can occur during childbirth. A full or even partial rupture of the uterus wall can immediately disrupt the supply of oxygen and nutrients to the baby. Deprivation of oxygen is the greatest threat to babies during pregnancy and childbirth. Oxygen deprivation can cause tragic brain injuries such as hypoxic-ischemic encephalopathy (HIE) often resulting in permanent mental or physical disabilities such as cerebral palsy. Uterine rupture can also be dangerous for mothers. If not timely diagnosed and treated a rupture of the uterus can cause massive internal bleeding and is one of the leading causes of maternal death during and after childbirth.
With the increase in uterine ruptures, VBACs started to disappear and were rarely performed. Then, VBAC’s have made a comeback. Why? Because women enjoyed the shorter recovery time and there were suggestion in the literature that a VBAC was safe. Between 1985 and 1996, the rate of VBACs increased from 5% to 28.3%. The incidence of uterine ruptures rose. Studies came out to show that is not as safe as predicted. The result was a progressive movement away from vaginal births after a C-section.
By 2006, the VBAC rate had decreased to 8.5%. Obstetricians who continued to do VBACs came to realize that they have become more careful about Pitocin and the hours of labor permitted after a failure to progress. The result has been a drastic reduction in uterine ruptures.
VBACs and Medical Malpractice
Why would anyone do a VBAC instead of a C-section? The answer is that there is a slightly decreased risk to the mother. There is less bleeding, less hemorrhage, and lower risk of infection. The risk of maternal death is higher with a C-section. Some also theorize without much medical evidence that perhaps as the baby squeezes through the vagina, it squeezes out whatever secretions are in the lungs which result in better breathing. Not many doctors as making the decision based on this possibility but the decreased to the monther are clear. So not many people are arguing that doctors should never do a VBAC. The real problem is the wrong women in the wrong situation doing a VBAC.
Medical negligence can occur in connection with VBACs in several different ways. Probably the most common form of VBAC related malpractice is where a doctor improperly advises a mother to attempt VBAC when she is not an appropriate candidate. The American College of Obstetrics and Gynecology (ACOG) has published guidelines which caution that VBACs should only be attempted with mothers who meet certain “low-risk” criteria. Doctors often fail to properly asses a mother’s VBAC risk factors and attempt VBAC on women who are not appropriate candidates.
Another common type of VBAC malpractice occurs when doctors fail to recognize signs of fetal distress and wait too long before abandoning the VBAC in favor of an emergency C-section. The question of when to intervene with an emergency C-section is present in every delivery. With VBAC attempts, however, doctors need to error on the side of caution and should be much more ready to and willing to pull the plug on the VBAC effort and order a C-section.
The most dangerous type of medical malpractice that can occur in connection with VBACs is the failure to diagnose uterine rupture which is going to happen in about 1% of VBACs. The reason VBACs are high risk is because the C-section scar site on the uterus wall is weaker and more susceptible to rupture during vaginal delivery. A uterine rupture during labor and delivery presents an extreme emergency. When a rupture occurs the baby needs to be immediately delivered via emergency C-section. Even a brief delay in diagnosing or responding to a uterine rupture during VBAC can have devastating consequences for the baby and mother. You can dismiss 1% as insignificant but the risks to the mother of serious injury or death from a C-section are far less than 1%.
The one thing for sure is that at a minimum, OBs, midwives and labor and delivery nurses must know that management of a VBAC patient in labor requires heightened vigilance and a lower tolerance for abnormalities in the fetal heart oxygenation in utero. That hospital should be ready when that TOLAC to be converted into an emergency C-section.
What Is a TOLAC?
A TOLAC or “Trial of Labor After Cesarean” is the attempt to have a VBAC after the mother previously had a C-section.
Infomed Consent and VBAC
The AGOG guidelines for VBAC require the obstetrician to discuss the risks and possible complications for both a repeat C-section and a VBAC. This allow the patient to make an informed choice. The standard of care absolutely mandates that the patient get meaningful informed consent so that she can participate
and make an informed choice as to whether to attempt a vaginal operative delivery.
Another related issue that often comes up in VBAC malpractice cases is the failure to obtain informed consent. Normally anytime a doctor performs a non-emergency surgical procedure (i.e., something scheduled in advance) they are legally required to explain the risks of the procedure to the patient and obtain their consent. Even though a VBAC is technically not a “surgical procedure” it is still considered a non-standard obstetric procedure with increased risks. Doctors are therefore obligated to explain the risks of VBAC and obtain the mother’s informed consent. Failure to obtain informed consent for a VBAC can be an independent grounds for medical malpractice.
There was a case our lawyers saw once – not our case – where the mother asked the doctor whether she had ever lost a child during a VBAC. The doctor had very recently but did not answer the question. This is also a breach of informed consent because it is real information that the mother reasonable wants to know.
What is depressing is that the receptivity to VBACs seems contingent upon whether the doctor practices in a state that is generous to doctors in medical malpractice lawsuits. VBAC rates were significantly higher (and C-section are lower) in states that have a cap on damages in medical malpractice cases. You would like to think that doctors delivering babies would be focused more on the safety of the baby than the risk of medical malpractice claims for which they almost invariably have insurance coverage.
VBAC Verdicts & Settlements
Summarized below are recent verdicts and reported settlements from medical malpractice cases involving VBACs. These case descriptions are provided for informational purposes only.
- Ziolokowski v Escobar (Pennsylvania 2018) $7.2 million: mother’s first baby was delivered via emergency C-section after her labor stalled. 2 years later she becomes pregnant again and her OB/GYN strongly encourages her to attempt VBAC. She is induced with Pitocin at full-term and attempts VBAC but her labor fails to progress after hours of pushing. Instead of abandoning the VBAC effort and ordering an emergency C-section her doctor continues the vaginal delivery which takes several more hours. By the time baby is eventually delivered he is not breathing but a neonatal resuscitation is not on hand. By the time an emergency resuscitation team intubates the baby he has suffer oxygen deprivation for nearly 8 minutes caused HIE brain injury and cerebral palsy. Mother sues her doctor and the hospital for negligently advising her to attempt VBAC and failing to be properly prepared for VBAC. Jury in Montgomery County awards $7.2 million.
- Kahnkari v Pombar (Illinois 2016) $11.2 million: 34-year-old mother with 2 prior C-sections is advised to attempt VBAC. The baby is not in the optimal presentation and 2nd stage of labor does not progress normally but doctor does not terminate the VBAC effort. Doctor is eventually forced to used forceps to facilitate VBAC but mother suffers fourth degree tear from her vagina to her rectum, resulting in a recto-vaginal fistula. She sues the doctor for negligently advising her to attempt VBAC when she was not an appropriate candidate for VBAC in light of the baby’s presentation. Jury in Chicago awards $11.2 million in damages.
- Pike v Hodges (Idaho 2016) $1.4 million: A mother delivers her first baby via C-section but has successful VBAC with her 2nd baby. With the advice of her doctors, she attempts VBAC again for her 3rd baby. Although the VBAC successfully delivers the baby without harm her uterus partially ruptures at the C-section scar site at some point during the delivery. Despite symptoms and fact that delivery was VBAC her doctors fail to timely diagnose the uterine rupture and it leads to an infection in her abdominal cavity.
- French v Rosencranz (Indiana 2010) $1 million: After delivering her first baby via emergency C-section mother’s doctors plan to attempt VBAC for delivery of her 2nd baby despite a history of complications with her prior pregnancy. The VBAC attempt goes wrong from the start and ultimately has to be abandoned after partial uterine rupture occurs at the C-section scar site. The baby is eventually delivered via emergency C-section but not before suffering significant oxygen deprivation. The baby is eventually diagnosed with cerebral palsy. Mother files malpractice suit alleging, among other things, that doctors never obtain informed consent for the VBAC. The case is ultimately settled out of court for $1 million.
- Stanziano v Miami Valley Hosp. (Florida 2009) $30.2 million: After vaginal delivery of her first baby and C-section for her 2nd baby, the mother is advised by doctors that she is an appropriate candidate for VBAC with her 3rd baby. She is admitted to hospital for full-term VBAC attempt and given heavy doses of Pitocin to accelerate contractions. While under the supervision of nurses she suffers a severe uterine rupture at her scar site. The placenta completely detaches and the baby is outside the uterus cavity when she is eventually delivery via emergency C-section. The baby is diagnosed with hypoxic-ischemic encephalopathy (HIE) resulting in a severe cerebral palsy. Her lawyers file a birth injury medical malpractice case alleging that she was improperly identified as a VBAC candidate and that the hospital’s failure to have policies and procedures in place that required physician attendance for at-risk patients such as VBAC patients. A jury in Miami awards $30.2 million in damages.
Miller & Zois can Help With Your VBAC Malpractice Case
If you or your baby has been injured in a VBAC and you think the doctors may have made a mistake, contact the birth injury malpractice lawyers at Miller & Zois for help. We can review your medical records and help you determine whether or not medical malpractice may have occurred. Call us today at 800-553-8082 or request an online consultation.