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Malpractice 101 (and other scary stories surgeons tell in the dark)

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By Courtroom Mama

Last night, as I was browsing my favorite birth activist websites, I read the words “frivolous lawsuits” no less than three times, mostly in the context “if it weren’t for all those frivolous lawsuits, we could join hands with obstetricians and go skipping together into the daisies of a bright new tomorrow.” This is nothing unusual: so much as mention VBAC, and the issue of medical malpractice comes up. The fear among medical practitioners is palpable, and it has trickled its way into the conventional wisdom of birth advocacy. Whatever people might think about malpractice plaintiffs, defendants, or lawyers, it seems that “malpractice” is one of those concepts like “irony” – often referenced, frequently misunderstood. So I humbly offer an introduction to medical malpractice for the non-attorney.

First, a working definition:  Malpractice is professional negligence, that is, when a professional of some sort commits the tort of “negligence” by departing from the standard of care within the profession in a manner that causes foreseeable harm to a client to whom he has a duty. A tort is a private right of action for injurious conduct – this is important because an injured party without a right of action has a whole lot of nothing.

Important digression: if a person is beaten up by a stranger, it is probably a crime called assault or battery or something of the like depending on the jurisdiction. When this case is tried, it is probably going to be styled “People vs. So-and-So” or “State vs. So-and-So.” Markedly absent in this caption is the victim. Indeed, criminal justice is not really about the victim, who is just the complaining witness in the state’s case. The perpetrator is usually not directly accountable to the victim, who may have medical bills, lost wages, etc. Prosecution is about the perpetrator’s transgression against society.  Society is made whole (theoretically), but the victim just gets the satisfaction that a “bad guy” is locked up, or they can make a claim to an often dysfunctional victim compensation fund.

Kind of a bum deal. Such a bum deal that we, as a society, have come up with the idea of torts, the idea that a person should be made to pay for the harms that they cause others. Since we don’t have the stocks or the scarlet letter anymore, and you can’t force people to do nice things for you in restitution (pesky 13th Amendment), we use money as a surrogate. For the most part, there are pecuniary damages, or the straight up costs of the tort (doctor bills, lost wages, etc.), and nonpecuniary damages, a more nebulous concept of the pain and suffering cause by the tort (the pain, social isolation, other squishy stuff). There are two basic philosophies that undergird this system: restitution (to make the victim “whole”), and deterrence (to keep others from doing the same).

So if we have decided that it’s appropriate for me to have to pay you if I break your lawnmower, or run over your foot, or set your house on fire, why should a doctor not have to pay if he injures you? It happens. Medical errors are not joke; one case that sticks in my mind is one where a woman went in to have hemorrhoids cauterized (or something) and she was incorrectly prepped in such a way that when the cauterizing tool was turned on, it caused an explosion that literally caught her ass on fire.  Sometimes they cut off the wrong leg. Sometimes they leave surgical tools inside people (if you were awake for a cesarean, did you notice them counting sponges and clamps?). As for why you might want to hold someone who is doing such important work as healing responsible in tort — there used to be this doctrine, now defunct in most states, called “charitable immunity.” It meant that people who went to charity hospitals couldn’t sue, because beggars can’t be choosers, and you get what you pay for, and after all, who wants to sue the Sisters of St. Vincent de Paul? As it happened, people got really terrible care, and nobody really gave a fig because they were poor. Turns out that the deterrence factor makes a difference.

Question: if a doctor commits malpractice during a birth and the baby comes out with a permanent disability as a result, how much do you think it is going to cost the family to raise that child relative to how much it would have cost if the child were not born disabled? Will the parents magically start making more money to meet the shortfall? (in fact, if the birth injury is severe enough, one parent may have to stop working to care for a disabled child). How much will they have to pay in future medical costs? And remember how we’re having this debate about healthcare and how the costs are out of control and how more and more people are uninsurable because insurance companies are risk-averse? Of course healthcare reform is socialism/communism/facism/cubism, and much of the opposition to healthcare reform came in the form of claims that tort reform would fix our broken system, but this misses an important truth: people sue, in part, because malpractice is expensive for the victim.

Most people that I have spoken to are pretty comfortable with compensation for the cost of medical care and lost wages — the cost of fixing what is broken. Non-pecuniary damages, on the other hand, are a little more difficult to put a pin in, so they are often a target of people’s ire — after all, bad things happen to people all the time, and they don’t deserve to hit the lottery for it, do they? This view is so pervasive that some states have laws that place caps on non-pecuniary damages. However, Professor Lucinda Finley proposes in her article The Hidden Victims of Tort Reform: Women, Children and the Elderly, 53 Emory Law Journal 1263 (2004), that such caps have a disproportionate impact on women. Her research suggests that non-pecuniary damages are the greater part of women’s awards, and that to cap this form of damages limits the amount of money women can recover. This is, in part, because economic calculations such as future wages are made taking the gender pay gap for granted. Another factor is that there are certain injuries that occur solely or predominantly to women that are compensated through non-pecuniary damages because they don’t affect wage-earning capacity: sexual or reproductive harm, pregnancy loss, and sexual assault injuries. If we see only the economic harm that injuries cause as legitimate, what of harms to non-money-making aspects of people’s lives? Many of these types of harms, including impaired fertility, sexual trauma, and damage to intimate parts of the body, are implicated in birth cases. 

This is not to overlook the fact that malpractice insurance is expensive for the practitioner – by many accounts, prohibitively so. But the fact of high malpractice premiums does not alone prove that higher payouts are the cause of the rise in premiums. It doesn’t tell us anything about how many people are injured by malpractice and don’t sue, or how many sue but aren’t compensated. It doesn’t tell us how many cases settle out of court, and how many of those involve conduct that was, in fact, malpractice. In short, there is a whole lot out there that we don’t know about malpractice, and a lot of urban myths and horror stories that are repeated as gospel. Without actual data supporting these claims, we have know way of knowing whether physician’s fears of malpractice suits are justified—or perhaps more importantly, whether the lawsuits themselves are justified.

An illustration of the breakdown of critical faculties around such a sensitive issue occurred during the NIH VBAC Conference. In the midst of a multi-day conference dedicated to rigorous research and empirical evidence, when it came time to discuss medico-legal factors affecting medical practice, the speaker didn’t present statistics. Instead, he told an anecdote about someone who was sued and found liable simply because the victim was sympathetic. We agree that birth horror stories are not an acceptable basis for forming policies and procedures around labor and delivery, and we demand the evidence around induction, uterine rupture, macrosomia, etc.  It stands to reason, then, that we should also demand the evidence when it comes to claims of a malpractice crisis caused by a proliferation of frivolous lawsuits: especially when one person’s “frivolous lawsuit” is another person’s worst day. 



Courtroom Mama is feminist mother and attorney. She’s a birth/women’s health geek, a reproductive justice advocate, and an uppity woman of color. www.courtroommama.com







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Reader Comments (23)

Beyond the gratuitous doctor bashing, what does the title have to do with the post? What "scary stories" do surgeons tell in the dark? What do they tell each other that isn't true? I didn't see a single example in your post.

January 11, 2011 | Unregistered CommenterAmy Tuteur, MD

Thank you for writing this. I hate way people look at us when we say we are trying to sue the doctor who 'delivered' my son, almost killed and permanently damaged my beautiful son who is now in a lifetime of physical and occupational therapy and will need several surgeries. We are supposed to feel lucky he is alive, or that he doesn't have brain damage (and I am thankful for that every day), but he has severe erb's palsy, which effects his entire body, nevermind the physical pain he suffered for months and the violent birth that breaks my heart he had to endure. We are in debt because of medical bills, neurosurgeons, orthopedic surgeons, ortho rehab specialists, therapy, splints.... and his arm still doesn't move more than a 90 degree angle. Nevermind the post natal PTSD I have had to deal with.
And a doctor who after she pulled/ripped him from my body using her foot as leverage on the bed, while screaming at me to "be quiet!" because I screamed from the pain, walked into the room after he was rushed to the NICU, and I was still in stirrups having all the blood moppe up to say, "now don't you wish you would have just let me induce you 3 days ago?"

January 11, 2011 | Unregistered CommenterKelly B

Hi Dr. Tuteur, I'm sorry that you saw Malpractice 101 as "gratuitous doctor bashing." Then again, I tend to see tort-reform lobbying as gratuitous patient-bashing, so I suppose we're even. The title is intended to be tongue-in-cheek, but "scary stories" - or anecdotes extrapolated into empirically false beliefs about the state of malpractice law include, among others, that the driving problem is "frivolous lawsuits" from plaintiffs are looking to "win the lottery," that bad outcomes are dispositive, that there is indeed a malpractice crisis and that it is driven by an increase in lawsuits, that defensive medicine will protect one from a lawsuit, etc.

I make a conscious effort to be sensitive to the very real fears and concerns that doctors have around loss of livelihood, it is serious business. But it seems that there are some misunderstandings that stem from 1) a lack of data about the nature, extent, and etiology of the malpractice crisis, and 2) a lack of understanding of what, exactly, malpractice is and the aims of the doctrine. This post addresses the later part, and serves as an inadvertent companion piece to Dr. Roth's post yesterday.

January 11, 2011 | Registered CommenterCourtroom Mama

" that the driving problem is "frivolous lawsuits" from plaintiffs are looking to "win the lottery," that bad outcomes are dispositive, that there is indeed a malpractice crisis and that it is driven by an increase in lawsuits, that defensive medicine will protect one from a lawsuit, etc."

But you didn't show that surgeons said any of those things.

Moreover, you didn't show that there isn't a malpractice crisis or that defensive medicine doesn't work.

An obstetricians' risk of being sued at least once is 77%. If virtually every obstetrician is being sued, how can you deny that there is a malpractice crisis? What, exactly, do you think would characterize a "real" malpractice crisis, if not that?

January 11, 2011 | Unregistered CommenterAmy Tuteur, MD

Maybe instead of 77% being sued for not practicing according to the evidence, just maybe, the malpractice crisis is that not EVERY doctor who can't read the evidence and practice accordingly is sued. Maybe if they thought, "I'm sick of being here, let's just cut her... oh wait, I'll be SUED for performing unnecessary abdominal surgery! maybe I'll stick around that extra hour.." outcomes would be better for everyone involved.

January 11, 2011 | Unregistered CommenterKaren

Kelly, I am sorry to hear that you had such a terrible experience, and that your baby was injured during birth. Without making any assumptions or implications about your birth or your lawsuit, the last part of your comment touches on something that I think is very important - compassion and keeping a patient informed of what is going on and why can go a long way. Unfortunately, in the heat of the moment, both doctors and patients can get scared and upset and the way a person is treated during a medical emergency can indelibly color the experience. Perhaps more unfortunately, doctors are sometimes sensitized (perhaps incorrectly trained by administrators?) to think that making any compassionate statement afterwards is an admission of negligence and exposes them to liability. This creates more animosity, and can lead to litigiousness.To combat this, some states that have passed bills that make apologies and expressions of sympathy inadmissible in court, so the doctor can feel free to apologize and have a human response to tragedy. In one hospital that required its doctors to admit and apologize for mistakes, their annual number of malpractice suits fell by 50%. If anyone here has more information about that, I'd be interested to read it.

Not to get all squishy and hand-holdy about this, but my post and the post that follow it are good bookends (again, inadvertent -- Jill is the one responsible for the brilliant order and grouping of the posts) that serve as a reminder that there are human beings on both sides of the table, and that acknowledgment of that might help.

January 11, 2011 | Registered CommenterCourtroom Mama

@Dr. Tuteur - That may be so, but what is the risk of any individual doctor causing negligent injury to a patient? The research that I have looked at, and I'm sorry that I don't have cites for you, suggests that a vanishingly small percentage of negligent medical errors result in malpractice suits, and even fewer result in plantiff's verdicts. Perhaps the "malpractice crisis" is the fact that so many people are negligently injured and never see justice.

Rather than engage in a "who said which incorrect thing" or "who relied on what incorrect anecdote," (or trying to prove that my cheeky title parenthetical is somehow not connected to the substance of the post?) I think it is more important that we understand the problem in order to address it. As I said in my post, using the illustrative example of the doctor at the NIH conference who relied on an anecdote in the middle of a conference on empirical research, we need to see the evidence on the issue of malpractice just as much as we do in creating clinical best practices.

January 11, 2011 | Registered CommenterCourtroom Mama

"That may be so, but what is the risk of any individual doctor causing negligent injury to a patient? The research that I have looked at, and I'm sorry that I don't have cites for you, suggests that a vanishingly small percentage of negligent medical errors result in malpractice suits,"

Everyone in the legal and medical professions knows that there is a mismatch between actual malpractice and malpractice suits. Most victims of malpractice don't sue, and most people who sue aren't victims of malpractice. Since that means that the innocent are sued and the guilty get away with it, that seems to prove my point that there is a malpractice crisis, not your point that there isn't.

January 11, 2011 | Unregistered CommenterAmy Tuteur, MD

"Rather than engage in a "who said which incorrect thing" or "who relied on what incorrect anecdote," (or trying to prove that my cheeky title parenthetical is somehow not connected to the substance of the post?) I think it is more important that we understand the problem in order to address it."

I was writing the same thing!!!! I say unlift the ban- ban her!!!!! she is as usual just "parachuting" in here- wasting time by playing English teacher.

January 11, 2011 | Unregistered CommenterSaanenMother

Saanen Mother, I appreciate your feedback. Yes, this thread shows some hair-splitting for the sake of argument. The intention of this post was to provide a palatable, accessible overview of malpractice and torts for the layperson and I think it succeeded in piquing interest in a topic that most people probably really don't dig into beyond what is fed to them on TV.

I invited Amy to participate in this series and I'm glad she's here. It's not that I'm not disgusted by her exploitation of mothers of dead babies and pathologization of emotional birth trauma, but I think she has an interesting vantage point on issues surrounding defensive medicine and cesareans based on a number of factors.

January 11, 2011 | Registered CommenterJill
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