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Sunday
Aug022009

Unnecesareans, Obstetrics and Blaming Lawyers

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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.

 

1. ACOG 2009: Liability Fears May Be Linked to Rise in Cesarean Rates (May 2009)

2. Reducing Obstetric Litigation Through Alterations in Practice Patterns (Dec 2008)

3. Medical Malpractice: Impact of the Crisis and Effect of State Tort Reforms (May 2006)

4. MEDICAL MALPRACTICE INSURANCE: Multiple Factors Have Contributed to Increased Premium Rates (June 2003)

 

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.



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Reader Comments (7)

Two ways to curb medical malpractice include the following:

1) a medical court, where malpractice cases go, so that both doctors and patients have the ability to have a fair hearing with experienced jurists, rather than ending up with a team of jurors who may not know a spleen from a splinter, and are at the mercy of which "expert witness" sounds more credible. Perhaps this could take the form of a medical arbitration hearing with retired or experienced doctors, nurses, midwives, etc. serving as the jury pool. They'll be less gullible to sleight-of-hand from either party. The Constitution only requires a "fair and impartial jury" -- it does not require that the jury pool include all registered voters or anything like it. Of course, safe-guards would have to be put in place to keep "the old boys' system" from settling in and giving doctors a slap on the wrist when they truly deserve to lose.

2) have a no-fault system or bank account or whatever you want to call it, in which injured people (or parents, in the case of a child) can get some help with medical bills, even if there was no actual malpractice. Doctors pay into this like malpractice insurance, and injured people can get financial relief. There is something similar with vaccines -- parents can't sue doctors or vaccine manufacturers if their child is injured or killed by a vaccine, but they can apply for help with medical expenses due to a vaccine injury, if they can show injury. I think about the book "Baby-Catcher" by Peggy Vincent. If you haven't read it, you should. SPOILER ALERT. One case was a woman who refused to go to the hospital at the start of labor even though the midwife and doctor agreed that she was high-risk and needed to, and ultimately ended up with an emergency C-section and a baby who was barely alive (twelve minutes of CPR before breathing; lived, but as a total vegetable), and this was more the fault of the mother and the inept ambulance driver who got lost and the chief OB who continued to resuscitate beyond the 10-minute time limit... but the grieving parents sued everyone involved, and the various malpractice insurance companies settled rather than risk a lawsuit and potentially losing more money from the sympathy factor of the screaming child being brought into the courtroom as evidence of malpractice -- what jury would not want to hold *somebody* responsible? "And after all, it's not really the doctors that lose money -- it's the evil insurance companies who do," might be their thinking. Plus, the baby's care would be quite expensive for the rest of his life, and the parents couldn't afford it, but the insurance company is rich and has enough money to pay for it, so why not? Even though it wasn't the midwife's nor her backup OB's fault. But with a no-fault system, health-care providers would be somewhat shielded from such lawsuits, and patients could still get some help with their care.

August 2, 2009 | Unregistered CommenterKathy

What Kathy is proposing sounds just like the vaccine courts. I think the problem with that model is the tendency for the system to protect itself. We can see it happening with whats going on with the vaccine debate right now. It seems the courts are loathe to come down with any ruling that may upset the system.

I believe that the threat of malpractice is a red herring. OBs may be afraid of it, but they're practicing out of perceived risk, not real risk. I've heard it claimed that there is a good chance that every OB will be sued at least once in their career, but we need to ask ourselves why that is. Is it because we live in such a litigious climate that everyone just sues everyone all the time? The evidence doesn't bear out that claim. Is it because they've promised a healthy baby under all circumstances when there is no way they could deliver (forgive the pun) on that promise? Is it because they're practicing in an environment of perceived risk? Is it that they feel that a c-section or induction is just as safe as a normal vaginal birth even though the evidence does not bear that out and mothers and babies are being injured?

I think the best thing we can do to reduce malpractice claims is to adhere to evidence based care and educate mothers about the realities of birth. Women need to know that under most circumstances birth is a normal process that when allowed to continue unimpeded, produces a healthy mother and baby, but even then there are things (like shoulder distocia) that just can't be predicted. I find it very interesting that OBs practice in a climate of fear of practicing without malpractice insurance, yet midwives forgoe the fear and the insurance and come up with better outcomes.

That would be a fun exercise in corelation v. causality. Does having malpractice insurance increase the instance of birth injury? (snark, snark)

August 2, 2009 | Unregistered CommenterShotgun Mary

Seriously, I hear you on the casaulity thing. Has anyone considered that the malpractice rates and awards are higher in places where the c section rates are higher because the doctors there don't practice evidence based medicine and don't have good relationships with their patients?

I read the poster presentation you linked to, and there was an assumption that many of these malpractice cases are based on not doing a cesarean, However, the AJOG printed an article not too long ago about a hospital system that introduced evidence based practices, including restricting oxytocin use. They didn't implicitly try to restrict cesareans, but following their new algorithms led to less cesareans and less malpractice suits.

August 3, 2009 | Unregistered CommenterMomTFH

MomTFH: "Has anyone considered that the malpractice rates and awards are higher in places where the c section rates are higher because the doctors there don't practice evidence based medicine and don't have good relationships with their patients?"

Oh man. How would you measure quality of doctor-patient relationship? Surveys? I'll pass this question on to someone I know who's doing research on the topic.

The AJOG article was the one that discussed the changes from dropping from like a 93% pit rate to 75% or something like that, right?

August 3, 2009 | Registered CommenterJill

Mary, I suspect it's partly a red herring, too. I have more reasons for thinking this... I'll elaborate another time. But seriously, for every one possible answer or theory I come up with, I have about 50 questions. I read about this all. the. time. but I don't write a lot about it because there are just so many things to factor in. It's kind of overwhelming.

August 3, 2009 | Registered CommenterJill

I love coming back to a thread and finding I have already commented on it! Jill, I am going to try to examine respect for patient autonomy, balanced with evidence based medicine, in my survey. Not sure how easy that is going to be.

Oh, and interestingly (not sure how this factors in) my area has an obnoxiously high cesarean rate, and most of the obstetricians "go bare", which means they do not carry malpractice insurance. Midwives are required to carry insurance. So, you are much more likely to get a midwife with malpractice coverage in my area than an ob/gyn. The ob/gyns are required to have $250,000 available in assets, and then can go without the insurance. They just have to put a sign up announcing that they are not insured. Patients just sue them for their assets when a suit comes up.

September 13, 2009 | Unregistered CommenterMomTFH

Im not even the one who was under the knife but I feel horribly mistreated. I feel my wife was given a C section for every reason but the right one. From a doctor who told us when we asked "why?" told us " You people on this side of town I have to explain over and over again" YOU PEOPLE!!!!!! My wife who is a graduate of Stanford University and myself a somewhat bright guy found this man to be absolutely offensive. It's such a long story and im so tired I really can't go any further. What a horrible feeling on what should be one of the happiest days of my life.

February 4, 2010 | Unregistered CommenterJames J
This blog is all done!
Thanks for wanting to comment. This is an archive of a blog that once was. Take care! Jill