Malpractice 101 (and other scary stories surgeons tell in the dark)
Monday, January 10, 2011 at 12:42PM
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
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.
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?"
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.
" 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?
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.
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.
@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.
"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.
"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.
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.
What is important to differentiate between in malpractice and maloccurrence. Bad things happen sometimes without fault of any of the care providers, however if an injured child is paraded in front of a jury, the natural reaction of that jury is sympathy and a desire to help the family provide for this child, in an extremely expensive healthcare system. Certainly a wealthy physician and insurance company with billions in assets can afford to help this child - "that's what insurance companies are for after all".
The USA is rather unique in having a jury of the general populace make these decisions, rather than a judge or advisory panel, which has actual training in deciding the merit of such cases. In addition, the personality of the doctor probably is a greater determinant in whether they will get sued, and sued successfully, rather than their quality of care. Someone may provide perfect care by all standards, and yet if they come across as arrogant, abrasive, and unapologetic, are more likely to be found negligent.
(Personally I want my surgeon to be good, rather than just nice, and the two do not always go hand in hand. Actually, I want my primary care physician to be the same, and willing to tell me I'm fat, need to lose weight, get more exercise or risk an early demise rather than just laugh with me about how hard it is to keep the pounds off and send me on my merry way.)
True malpractice needs to be dealt with in a stringent manner, with medical boards insuring that physicians remain knowledgeable, competent, diligent and accountable for their actions.
I think that most trial attorneys don't accept the majority of birth injury cases. There has to be overwhelmingly egregious deviance from a prudent and acceptable standard of care for them to accept it.
here is an interesting fellow whose work with regard to the training of obstetricians I quite admire:
http://www.preginst.com/case_study.html
He does the work he does for better outcomes because he is passionate about the care of mothers and babies, not an overarching fear of being sued.
here's another little tidbit to chew on:
http://archinte.ama-assn.org/cgi/content/full/167/19/2030#SEC3
Sometimes when I come back to check in on this site I realize how very much I have missed it, this series especially hits home and helps me remember why I appreciate the insights of everyone here (birth advocates) so much. Honestly, it is the ability of those "birth advocates" to see not only their own trauma but the opposing views as well that makes it so much easier for me to find common ground. Together we are all simply human beings who have individual experiences, and who can relate to one another because many of us have similar ones regarding birth. Flawed as we all are, at least we can admit that, and gladly find the empathy in both views that coincide and those that dont seem to (yet find congruity in all views since the human experience is both an individual one and a societal one). I find it funny that those in opposing positions seem to think they can turn someone by being a bully and picking apart their opponents. I find it even more interesting that they dont understand that they are pushing those of us with a rational mind into the opposite camp even more by proving the theories that so many have complained about here (such as the pushy, bullying, crass and insulting Doctor who thinks they have the right to look down on everyone who does not have an M.D. after their name.). So, thank you Courtroom Mama for this very educational post, and thank you to said Dr, for proving once again that I made the right choice in fellows.
This comment was e-mailed to me from MomTFH, who kept getting an error message when trying to comment.
@Dr. Tuteur, there may be a malpractice "crisis" in your opinion, just as there may be a cesarean "crisis" in my opinion. I don't think arguing about word choice is going to solve either.
As for the title, I think it is apparent that many physicians do say they are limiting VBAC due to malpractice claims. They have responded to yearly ACOG surveys to that effect. In fact, I hear about liability pressures commonly when I tell people I want to go into ob/gyn. Yes, it was a cheeky title. Yes, I will attest that many physicians, including the surgeons I rotated with, complain about malpractice to the point that it does seem like a fireside horror story.
Based on my survey of the literature on the topic, (two examples are available here and here), despite exclamations about a malpractice "crisis", the best way for physicians to avoid obstetrical claims is to practice good medicine. Provide and document informed consent, follow evidence based guidelines, and respond appropriately (and document it!) to signs of hypoxia during labor. Most lawsuits are dismissed during review, and for the ones that make it to trial, the defending physician wins 2/3 of the time (citation #2 above).
Also, as Dr. Dorn pointed out more graciously above, my medical school instructor (a JD/MD) taught us the best way to avoid being sued is to not be an a**hole.
Instead of wringing our hands an escalating online conversations, we should work together to reduce the inflammatory climate in which patients and physicians do not communicate well and do not have a proper autonomy balance, all to the detriment of evidence based and ethical medicine.
I think Dr. Dorn brings up an exceptionally good point. Malpractice and maloccurrence are not the same thing. To take the example of shoulder dystocia--which I know is a pet of Dr. Tuteur's--when it happens, it can result in very serious long-term medical consequences. To automatically pin those consequences on the doctor would be wrong, UNLESS he/she did not practice evidence-based care and as a result either caused the situation or made it worse. Sometimes shoulder dystocia happens. Sometimes it happens in cases where it could have been avoided had the care provider followed certain standards of care. The former is maloccurrence, the latter malpractice.
I've never sat in a jury for a malpractice suit, but my understanding is that someone IS supposed to instruct the jury on what is and isn't malpractice. Is that not the case? If it isn't, perhaps that is the problem that needs to be addressed.
"Also, as Dr. Dorn pointed out more graciously above, my medical school instructor (a JD/MD) taught us the best way to avoid being sued is to not be an a**hole."
Hilary, as Courtroom Mama pointed out, there is a tremendous mismatch between actual malpractice and malpractice claims which results in the innocent being sued and the guilty getting off. And you know why the guilty get off? Because they're nice! I've met doctors who are little better than butchers, who have complication after complication, who hurt patient after patient, who have huge practices and who rarely get sued. Their patients don't have a clue and love them. Why? Because they're nice.
Sure, being nice is a great risk management strategy for the individual physician, but it's a terrible indictment of a "malpractice" system that punishes people because they have poor social skills and lets the guilty go free if they're nice. And it's not even the best risk management strategy.
The best risk management strategy, 100% foolproof, is to make sure you don't have any bad outcomes. And the best way to ensure that there are no bad outcomes is to do C-sections early and often. That's why obstetricians are doing C-sections earlier and more often. They KNOW they will be sued for malpractice and they are preparing their defense in advance.
Jill states "the best way for physicians to avoid obstetrical claims is to practice good medicine".
In a perfect world yes, however as someone who reviews cases for the state medical board, truly the best ways to avoid lawsuit are to be friendly and communicative, and document extensively. These are parts of good practice, but the bigger part, good clinical care according to best evidence, can easily get dismissed if the outcome is bad and the perception of the family or the reviewing expert is otherwise.
Modern EMR based charts have gotten to be incredibly long, filled with CYA boilerplate information, as well as extraneous tests, lest it be alleged that something was missed. I can't tell you how often it takes me longer to document a patient visit than the visit itself, and I am someone who really tries to sit down and give adequate time to each patient.
I like to try to dance as if no one is watching, and but I can't practice as if no jury will be reviewing my care. At worst, in the former, I will get laughed at. In the latter I may lose my livelihood.
Henry, just to clarify, that was Hilary's (MomTFH) comment. I just pasted it for her since the site was giving her error messages.
Between doctors and lawyers, I'll side with lawyers. At least their mistakes don't maim and kill.
Anonymous, that probably depends on how you look at it.
I think it's interesting that you would see it as a polarized debate between doctors and lawyers. It raises an interest point about the way we view things and what has been fed to us. Consider this excerpt from an article in AJOG (Sept 2010):
Traditionally, obstetricians and those who practice similarly high risk medical specialties have framed the issue of professional liability or, as often labeled, the “medical malpractice crisis,” as a conflict between physicians and plaintiff’s attorneys. Obstetricians view themselves as victims, held responsible for poor clinical outcomes that cannot reliably be prevented and unfairly burdened with ever-increasing insurance premiums. Plaintiff’s attorneys and patient advocates believe instead that these same physicians are protected by a system that is unwilling or unable to take steps to prevent avoidable injury to vulnerable patients. This binomial account, while often embraced by many obstetricians and attorneys, is woefully inadequate in that it fails to take into account the many other stakeholders, ignores the tort system’s ultimate purpose and goals, and overlooks a core, shared ethical obligation that provides ethical justification for needed reform.
(Chervenak JL, Chervenak FA, McCullough LB. A new approach to professional liability reform: placing obligations of stakeholders ahead of their interests. Am J Obstet Gynecol 2010;203:203.e1-7)