In Wisdom v East London & City Health Authority (2000) the claimant, a 34 year old woman, received an estimated £50,000 for pain, suffering and loss of amenity for an anal sphincter injury she sustained during the birth of her child at the defendant hospital in 1993. 

When she didn’t progress well during the second stage of her labour, the hospital performed an episiotomy but caused damage to her anal sphincter in doing so. The injury was not recognised and repaired before Ms Wisdom was discharged from the hospital. She subsequently suffered from urinary incontinence, pain and loss of sensation and complained of passing wind and faeces through her vagina. She was admitted back into hospital for investigations and underwent a sphincter repair and a colostomy in April 1994. Although Ms Wisdom received a colostomy reversal in July 1994 she did not make a complete recovery and suffered psychological distress as a result of her injuries.

The claimant alleged that the hospital has been negligent in causing her injuries and negligent in failing to recognise the damage caused and affect an immediate repair.

Although every case turns upon its own facts, medico-legal argument in this area is currently rife and it is likely that future obstetric claims involving anal sphincter injuries will prove more difficult to establish.

Obstetric anal sphincter tear injury (known in the medical field as OASI) can consist of damage to one or both of the anal sphincter muscles. This can be damage to either the external anal sphincter, which is responsible for controlling bowel emptying, or the internal sphincter, which provides fine control.  Damage can cause faecal incontinence, urgency and urge incontinence and understandably considerable distress.

Childbirth is the most common cause of damage to one or both sphincter muscles. Vaginal delivery is physically a traumatic experience, especially when the baby is large, and carries some risk of injury to the pelvic floor, bowel and bladder function in any event. Assisted delivery (ventouse more so than forceps) also increases the risk of sphincter injury as does the woman having suffered a previous sphincter tear. Usually the damage is nobody’s fault (although note that in the Wisdom case, the claimant alleged that the episiotomy was negligently performed), the anus and vagina are situated very close together and it is easy for the sphincter muscles to get stretched and torn.

OASI can be difficult to detect at the time of delivery for a number of reasons,  depending upon the extent of the tear. Although there are a number of different classifications for the extent of OASI, the following is widely accepted:

First degree tear   –  Injury to the skin only
Second degree tear   –  Injury to the perineum (perineal muscles alone)
Third degree tear   –  Injury to the perineum involving the anal sphincter
Fourth degree tear   –  injury to the perineum and complete tear of the anal sphincter

Third and Fourth degree tears are more serious given that they involve damage to the sphincter muscles.

Where possible, the OASI will be repaired before the woman leaves the delivery suite (a primary repair usually performed by the obstetrician). If the tear is missed, the injury will be repaired at a later date, usually by a colo-rectal surgeon (a secondary repair). A secondary repair can also be performed where a primary repair has been unsuccessful.

As will be explained below, there is currently much debate upon whether it can be said that a primary repair gives a woman a better chance of achieving continence than a delayed secondary repair.

To succeed with a clinical negligence claim, a claimant needs to establish both breach of duty (substandard care) and also a causal link to her injuries. In the vast majority of cases, the OASI will not have resulted from negligence as explained above, but the failure to recognise the injury at the time of delivery may well be negligent.

The obstetrician’s duty to the woman will be in relation to her future management i.e. how and when the injury is repaired. The claimant needs to go on to prove that the delay in recognising and repairing her OASI has caused her injury over and above what she would have suffered in any event, i.e. she is now worse off having had a secondary repair than she would have been had she had a primary repair.

In 1999, Schofield & Grace published an article in Clinical Risk concluding that “well-performed primary repair gives the best chance of acceptable continence ….. there remains a large group of woman in whom delayed repair fails completely”. This meant that for a number of years woman who had secondary repairs for missed third or fourth degree tears were able to establish causation more easily.

However, in 2005, Vaizey & Phillips published their article in clinical risk with a dissenting opinion: “It is not currently possible to state that a delayed repair has a better or worse outcome than a primary repair …… - the selective conclusions of Schofield and Grace can no longer be used as scientific evidence on which to base compensation.”

If a claimant is unable to establish that it is more likely than not that she would have had a better outcome with a primary repair, then her claim will be limited to compensation for the pain, suffering and loss of amenity that she suffered following delivery until the time that the secondary repair was undertaken. This is most probably going to severely reduce her damages.

As with any clinical negligence claim, independent medical evidence will be required and will need to be carefully scrutinised. However, until such time as the view of Vaizey & Philips is challenged through litigation, it is likely that causation will only be established on a limited basis.

Should you wish to discuss the information contained in this article further, or have questions relating to this area of law, please contact Caron Heyes.