Anal Sphincter injuries following childbirth The Lawyer’s Role – should it be like this? Claire Fazan March 2017

Who am I? A solicitor who has specialised for more than 2 decades in claims for mothers and babies arising out of childbirth.

Why and when do women consult Solicitors? What brings a woman to consult a solicitor varies as between individuals. Often they will do so because 1-2 years down the line their symptoms are such that they realise they cannot return to their employment and/or they have suffered the breakdown of their relationship and/or they are concerned about their child.

Whilst the reasons for seeking advice differ, what is common to them all is the overwhelming sense of isolation, of loss and of being the only person who has suffered in this way.

Isolation because they have felt unable to talk openly to friends and family about what has happened/is happening to them.

Trapped at home because the practicalities of getting out of the house knowing that they may have an accident with no easy and immediate access to toilet facilities is just too daunting. Meeting up with family, let alone other new mothers and forming those all important support networks are opportunities lost to all too many of them

Loss / a sense of grief Because the joy and pleasure associated in having a new baby has been overshadowed. Because of the fear of sexual intimacy and thus the loss of an intimate relationship.

Being alone Because no one has warned them or their partner ahead of delivery that there is a possibility of anal sphincter injury. As a consequence, far too many believe that it is their fault and that it is their “shame” to bear alone.

The cost to society of anal sphincter injury Aside from the dreadful individual pain and suffering of the women who are injured and their isolation and that of their family, there is a wider cost to society as a whole due to: Relationship breakdown and all that that entails for parents and children Reduced employment prospects of both mother and partner The loss of the pool of talent in the employment world The cost to the NHS of compensation claims

Incidence of anal sphincter injury is over 10% in women who deliver vaginally Only a relatively small percentage of those cases will have been caused through negligent failings in care. It is only those that may lead to a claim.

Typically legal claims will arise as a result of: Inappropriate use or application of forceps; Incorrect siting of episiotomy; Inappropriately prolonged labour; Failure to diagnose nature of tear correctly; Poor suturing of tear.

Whether the care provided has been such that there is a reasonable prospect of a claim for compensation for injury and financial loss to the individual mother being successful will be dependent upon careful independent medical and midwifery expert review. The first steps in investigating a claim are thus to obtain the records and independent expert opinion on the care provided.

Informed Consent The Supreme Court decision in the case of Montgomery v Lanarkshire Health Board in 2015 highlighted the importance of medical personnel (and in the context of maternal injuries that must include midwives) taking reasonable care to ensure that patients are made aware of any material risks involved in recommended treatment and of any reasonable alternatives. The test of what is material is patient specific.   This requires discussion prior to delivery. In exactly the same way that women will be better prepared to recognise their symptoms for what they are and to seek early help should they suffer the misfortune of anal sphincter injury if they are aware that it can and does happen, they will be better prepared to engage in the decision making process during their deliveries if they are armed with the information before the delivery.

The Role of the Solicitor I and my colleagues who do these sort of cases have, so often, found ourselves being the first people to whom women have spoken at length and openly about the full impact of their injuries not just on their everyday lives, but also those of their families.

As lawyers we need to take these details in order to be able to investigate and run claims. It is, however, quite wrong that due to the wholly inadequate support for women with AS injury the best chance of a “listening ear/ an opportunity to describe what they go through each day and to talk through possible coping strategies is with a lawyer. And yet, that has been the reality to date for very many of the women who have sought legal advice. All too frequently it has only been through the legal process that they have talked in this level of detail about what has happened to them and have got to see specialists, whether medical or psychotherapeutic, and to appreciate that their experience is one that is being endured by many other women.

Our role as solicitors is to investigate the quality of care provided and to advise on the basis of independent expert advice whether there have been negligent failings which have caused injury and, if so, to quantify the financial loss caused by that. Successful claims generally result in awards of damages in 5-6 figures and, occasionally more.

It would be far better for society as a whole if the need for lawyers and the incidence of successful AS injury claims was reduced.

The Future It is essential that we do all that we can through training and information generation to prevent AS injury occurring and, where it does occur to ensure it is recognised and treated appropriately and as early as possible; It is essential that women are provided with information before their delivery about the condition and where and when to seek help if it occurs. It is essential that the professionals to whom injured women do turn have the knowledge and resources to be able to treat and assist not just them, but also their families to rebuild their lives. This is why MASIC is so important.