On Stand and Deliver, Rixa wrote about her observations of a cultural fear of litigation among physicians, which was in part studied on the public OB-GYN-L forums. She wrote:
I was also surprised that many OBs feel trapped by the system, portraying themselves as victims and malpractice lawyers as The Big Bad Guys. Physicians comment about how ACOG “is a hostage of the legal system,” how “the legal system is the king (or queen),” or how “trial lawyers run the whole show.”
For women who have been the victim of defensive medicine via an unnecesarean or attempted unnecesarean, this victim/martyr mentality is very hard to stomach. A doctor is in a position of power by nature of the relationship, or at least in the American cultural construct of the doctor-patient relationship. They possess a skill-set that pregnant women might eventually need. Patients trust that they will abide by the Hippocratic Oath, largely because it is culturally ingrained for them to do so. By virtue of this position of power, they are also in the position to abuse and victimize women by placing their self-interest before the interest of their patients.
As previously written in the post Pit to Distress: Why We Are All Distressed, an article was published in Medscape Medical News in May entitled “ACOG 2009: Liability Fears May Be Linked to Rise in Cesarean Rates.” Elizabeth A. Platz, MD, presented the findings of a study she conducted on cesareans, liability and defensive medicine at an ACOG Clinical Meeting.
Dr. Kurt Barnhart applauded the abstract and offered his opinion on liability and cesareans:
Commenting on the results to Medscape Ob/Gyn & Women’s Health was Kurt L. Barnhart, MD, MSCE, member of ACOG’s Committee on Scientific Program. Dr. Barnhart is director of women’s health research at the University of Pennsylvania in Bryn Mawr, and served as director, with Janice L. Bacon, MD, of the Papers on Clinical and Basic Investigation.
“First of all, I applaud the abstract, that it quantifies a perceived problem,” Dr. Barnhart said. “We all anticipated that defensive medicine might be a reaction to litigation, and this paper demonstrates that that is indeed the case,” Dr. Barnhart said.
“What one does about it is a little bit more difficult. But with objective evidence … that fear of liability is causing C-sections, we can address the problem by reducing liability, thereby reducing C-sections,” Dr. Barnhart explained. “So instead of just telling physicians not to do C-sections, this identifies [the need] to remove the risk, and then they’ll do fewer C-sections.
“So don’t just blame the doctor for doing a C-section, recognize that there’s probably a reason that [he or she is] doing it. And that fear of litigation is the reason,” Dr. Barnhart concluded.
Barnhart’s comments are a cry for compassion for physicians, who are afraid of their patients and therefore perform cesareans because of this fear. Because they feel victimized, we as patients should not blame them for performing an unnecesarean; rather, we should accept our own victimization.
Is it really ethical or socially acceptable for doctors to victimize their patients with unnecessary procedures because they fear that they themselves will be victimized?
Women should have a way to escape the abusive relationship created by defensive medicine and a culture of fear. That should be easy enough, right?
Unfortunately, it’s not. With the American Medical Assocation’s and the American College of Obstetricians and Gynecologists’ opposition to home birth, along with 24 statesleaving Certified Professional Midwives (CPMs) subject to criminal prosecution for practicing medicine or nursing without a license, women are feeling stuck. As the primary cesarean rate increases, so does the number of women with scarred uteruses who are pregnant for the second time. With VBAC bans and de facto VBAC bans, the option to give birth normally in a hospital without a fight is dwindling and women are faced with the choice of an elective repeat cesarean or giving birth unassisted or with a midwife practicing outside of the scope of her license.
In response to the post on Stand and Deliver, I left the following comment:
The fear of being sued is obviously very real.(1) Is the fear justified and based on facts? Not exactly.
The highest payouts are being awarded to women who were actually victims of malpractice and not to what some refer to as greedy people looking to exploit the system to profit from a tragedy.(2) That would mean that the legal system is actually working at least somewhat effectively and benefiting the proper parties. So if doctors are not indeed being sued left and right for birth injuries that are beyond their control, then of what are they actually afraid? The courts do a good job of throwing out so-called frivolous cases and many victims of malpractice are never compensated at all.(3)
There is a great aversion to vaginal birth taking its course. Blaming lawyers and “the system” is a way to rationalize preserving the status quo and moving yet again toward a one-size-fits-all standardized American birth. We’ve been through this before historically. Now we’re doing it again with cesareans and it’s sickening.
Another thing to take into account is that payouts on claims are only one factor driving up the cost of insurance premiums. Market conditions, such as the current recession, play a significant role in the rising cost of malpractice insurance. The U.S. Government Accountability Office maintains that losses on medical malpractice claims is just one of the factors that causes premium rate hikes.(4)
Insurers invest premiums in the market. When investment income is high, insurance can be offered at a lower price than the expected cost of paying claims. Good market conditions—lower rates. Bad market conditions—higher rates.
A long lag between collecting premiums and paying claims affects rates as well. Insurers hold their premium rates down even while underlying losses are increasing. As a result, large rate hikes are required when the trend in losses is recognized.
Like most people, I don’t really have any real answers but I have loads of questions. None of this happens in a bubble and it’s going to take a really concerted interdisciplinary effort to gain a clearer picture.
What are your thoughts? Is it fair to blame the legal system? How far outside of doctors does the locus of control* lie?
*See comments on linked post.