Our novel idea is to reorientate maternity malpractice litigation from a normative assumption that intervention is always beneficial for mother and baby, to one based on human rights, evidence and amelioration

We hypothesise that this change will result in a decrease in iatrogenic harms associated with caesarean section inappropriately undertaken due to fear of litigation.

Our team includes members with expertise in: the law (Shammana, University of Hyderabad and Erdman, Dalhousie University, Canada); obstetrics/medicine (Torloni UNIFESP-EPM, Brazil, and Shammana); midwifery (Downe, UCLan UK) public and global health (Betran, WHO) and behavioural change (Altieri, WHO).

Why is this an unconventional approach?

Two co-applicants (Betran, Downe) are co-authors on a range of published systematic reviews (both qualitative and quantitative) examining the barriers and facilitators to unnecessary CS. The issue of fear of litigation was strongly present in these data, from all countries, at all income levels. As noted in our related Lancet paper ‘Contrary to scientific evidence, it is commonly believed that a CS is a protective procedure. Being sued…can generate negative publicity, damage reputations and professional confidence, and destroy careers... result[ing] in health providers delivering a CS for professional protection, rather than to benefit the mother and the baby ‘

We believe this problem represents a crisis currently unaddressed in the field. Obstetrics is one of the leading areas for litigation around the world, including in India, and concerns about the impact of defensive medical practice have been raised in the India context recently. Legal conflict influences health system actors’ perceptions and expectations and therefore behaviours, often resulting in the adoption of defensive health care, such as unnecessary interventions. These interventions drive up costs in health care systems, but also profoundly affect quality of care, including respect for patients’ dignity and choice, and clinical outcomes in the short and longer term. Current medical malpractice litigation sustains if not strengthens this adverse practice. A recent landmark ruling by the United Nations Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), recognized this bias in a particular case in which the appellant argued that she was subjected to unnecessary interventions in childbirth without explanation and without being allowed to express her opinion. The CEDAW judgement pays particular attention to underlying attitudes about gender and specifically the undervaluing of women’s human rights, as well as gaps in legal knowledge about the relevant evidence. This ruling also revealed that many lawyers and judges do not understand that medical decisions are often based on incomplete or nonspecific data. Additionally, labour and birth are by nature gender-specific, unpredictable, and contextualised by deeply held personal beliefs and attitudes of childbearing women, staff, and societies. This is compounded by the fact that both mother and baby are affected, and the baby cannot make decisions for itself. In its decision in favour of the appellant, CEDAW called specifically for the “training of judicial personnel and personnel responsible for ensuring compliance with the law” to ensure the reproductive health rights of women in childbirth are protected, and that evidence on appropriate maternity care is taken into account alongside professional expertise. A scoping review in Pubmed on this topic confirmed the novelty of this intervention.

Our innovation is to use Behavioural Insights approaches to co-design and pilot test a multi-media evidence and behavioural package for lawyers and judges related to maternity care, and, specifically, mode of birth.

Altieri is an expert in the application of the WHO Behavioural Insights process. We plan to build on the experience with key stakeholders in our international networks, and from India, to develop and pilot test an evidence-based (supporting materials, tools) and behavioural change (story-based) package, delivered face to face or on line.