Myths of Malpractice in American Obstetrics
Monday, January 10, 2011 at 7:30AM
By Louise Marie Roth, PhD
Myths of Malpractice in American Obstetrics: Rising C-section rates,
declining malpractice activity, and lawyer-blaming
About one third of all births in the contemporary United States occur via c-section. Physicians and the public at large often attribute this to a “malpractice crisis,” whereby obstetricians perform c-sections routinely to avoid malpractice litigation. Over the last couple of years, I have been conducting research on obstetric practices and malpractice. One of the things that I have learned is that, like many “common sense” beliefs, the belief that a high risk of malpractice litigation has caused the rise in cesarean delivery rates is empirically false.
First, there is a myth that malpractice lawsuits have become increasingly common in American obstetrics. The simple fact, however, is that cesarean rates in the United States have increased for 12 consecutive years, while malpractice litigation has remained the same or decreased. Data from the National Practitioners Data Bank reveals that obstetric malpractice suits fluctuated from 1991-2004 rather than increasing over time. (See graph below.) This is not what one would expect if a malpractice crisis were causing the rise in cesarean rates.
In addition to examining data on lawsuits, I am interviewing malpractice attorneys and birth attendants. I interviewed Jane,[1] a malpractice defense attorney (i.e. represents physicians) who has practiced for 15 years. She said that the number of cases has declined over time because they are costly for plaintiffs and their lawyers to pursue:
In the beginning of my practice, they were going up because of fetal heart tracings. For the first time, the plaintiff’s counsel had something seemingly concrete to look at and to be able to point to. But in the last, probably six years, they have decreased. I think that’s because all types of cases have decreased… Basically, I think it’s that the cases have gotten so costly to pursue.
Another malpractice defense attorney, Paul, had practiced over 30 years and said that malpractice cases have declined overall by 30-40% in recent years, both locally and nationally. He also viewed this decline as largely due to the high cost of filing suits and not tort reform, which his state does not have. “The cost has also limited the number of players” so that there are few attorneys available to represent malpractice cases. The only cases those attorneys take are those with clear liability and substantial damages that are likely to produce large awards. As a result, many victims of negligence are unable to find a lawyer to represent them because of the costs. The fact that the volume of cases has declined and only the clearest cases of negligence and malfeasance find legal representation contradicts claims that growing malpractice risks are leading to a rise in defensive cesarean deliveries,.
Secondly, in addition to my own research findings, there is published empirical research that reveals that malpractice liability is not the cause of rising cesarean rates. Dranove and Watanabe (2010) found that obstetricians who experienced claims against themselves or heard about cases against their immediate colleagues increased their c-section rates for a very short period after the claim. However, these increases were too small and too short-lived to cause the dramatic increase in cesareans that has occurred in the U.S. over time. (Also, if suits are down in number, then this small effect should be present for a declining number of obstetricians over time.)
Recent research also suggests that tort laws influence cesarean deliveries in somewhat unexpected ways: reform of the Joint and Several Liability (JSL) rule (also known as the “deep pockets rule”) reduces cesareans, while caps on non-economic damages increase them. This contradicts arguments in favor of tort reform, which suggest that capping non-economic damages will put obstetricians at lower risk of malpractice litigation and thus reduce the c-section rate. In fact, cesareans increase when damages are capped and the risk of litigation is reduced – the opposite of what one would expect if a primary cause of the high rate of cesareans is litigation risk. Also, cesarean rates decline when obstetricians are more accountable for the quality of care that they provide (reform of the JSL rule means that plaintiffs can only sue those who are directly responsible for negligence and not the organizations that they work for). JSL reform tends to increase the connection between quality of care and liability, thus encouraging providers to be more careful. This suggests cesareans do not represent a cautious approach and may indicate poor quality care (Currie and MacLeod 2008).
In a nutshell, the idea of predatory trial lawyers might make a convenient scapegoat, but the actual risk of malpractice litigation has no effect on cesarean sections. It seems more plausible that an unfounded fear of malpractice litigation leads to defensive practices that are totally out of proportion to the actual risk. There is plenty of evidence for this fear. A 2004 ABC interview revealed this:
In hospitals, the lawyers have bred so much fear that patients now suffer more pain, and may be less safe because doctors are concerned about being sued. “That fear is always there,” said obstetrics professor Dr. Edgar Mandeville. “Everybody walks in mortal fear of being sued” (http://www.medrants.com/index.php/archives/2025).
Similarly, a blog on Florida injury lawyers stated:
Some local doctors say that the surgery is a safer option for them than the risk of a botched delivery that could lead to a Florida medical malpractice lawsuit. The majority of obstetricians in the county no longer have liability coverage because it is too expensive (http://www.southfloridainjurylawyerblog.com/2008/09/palm_beach_county_doctors_cite_1.html).
Obstetricians interviewed by Wendy Simonds similarly expressed a tendency to intervene in birth because of litigation fears (Simonds, Rothman, and Norman 2007). This fear may be felt as very real and may drive behavior, but the data are clear: fears of litigation are largely not grounded in actual risk. Moreover, these fears do not justify subjecting millions of women to unnecessary surgery, which violates medical ethics and pregnant women’s human rights. Practitioners’ fears would not justify this even if malpractice litigation were as common as people believe.
References
Centor, Robert M. 2004. “ABC on Edwards the malpractice lawyer.” DB’s Medical Rants: Contemplating medicine and the health care system (http://www.medrants.com/index.php/archives/2025).
Currie, Janet, and W. Bentley MacLeod. 2008. “First Do No Harm? Tort Reform and Birth Outcomes.” Quarterly Journal of Economics (May): 795-830.
Dranove, David, and Yasutora Watanabe. 2010. “Influence and Deterrence: How Obstetricians Respond to Litigation against Themselves and Their Colleagues.” American Law and Economics Review 12, 1: 69-94.
Simonds, Wendy, Barbara Katz Rothman, and Bari Meltzer Norman. 2007. Laboring On: Birth in Transition in the United States. New York: Routledge.
South Florida Injury Lawyer Blog. 2008. “Palm Beach County Doctors Cite Fear of Medical Malpractice as a Reason for the Increase in C-Section Deliveries.” September 15, 2008. (http://www.southfloridainjurylawyerblog.com/2008/09/palm_beach_county_doctors_cite_1.html).
[1] All names are pseudonyms.
Louise Marie Roth is an Associate Professor of Sociology at the University of Arizona. She is an expert on sex discrimination in employment, with interests in a wide variety of gender issues. Her book, Selling Women Short: Gender Inequality on Wall Street, documents gender inequality in finance with special attention to the bonus pay system. Her new research studies how health insurance and malpractice in the United States influence reproduction and childbirth, especially the rise in cesarean sections. www.louiseroth.com
Reader Comments (27)
Louise, thank you for this post. One question raised by your piece is the role of malpractice *insurance*--aren't those costs going up, even as liability appears to be going down? Could the fears that OBs have be fed by their inability to afford liability coverage?
It's quite possible that rises in malpractice insurance rates are *not* driven by more claims, but if so, there definitely needs to be an explanation as to why; perhaps some readers will be able to offer insight.
Louise may be able to offer insight into the psychology, but here's a little more info. 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. 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.
That's not what we hear in interviews or read in the paper.
The graph provided by Prof. Roth suggests precisely the opposite of what she claims.
The C-section rate has increased dramatically and the malpractice rate has stabilized. In other words, defensive C-sections have done exactly what they are intended to do. In fact, the graph suggests the possibility that if the C-section rate were to rise even higher, the rate of malpractice filings might begin to fall.
That's not surprising when you consider that the overwhelming number of obstetric malpractice suits allege failure to perform a C-section, or failure to perform a C-section sooner. Every C-section done early effectively prevents a lawsuit.
That, of course, does not mean that obstetricians should perform defensive C-sections, merely that defensive C-sections really work, as evidenced by the stabilized rate of lawsuit filings.
So your interpretation is that the increase in so-called defensive cesareans caused the malpractice lawsuit rate to stabilize?
First, Jill is absolutely right about liability insurance premiums. Rises in premiums are only tangentially related to payouts from lawsuits, and also affected by changes in the investment environment. As a result, there is not a one-to-one correspondence between these insurance premiums and malpractice litigation. In fact, premiums have been going up as the number of lawsuits has declined.
With respect to Amy Tuteur's comment, the reason that the malpractice lawsuit rate stabilized and started to decline is not because of the increase in cesareans. The reason that malpractice litigation is declining is because it has become increasingly difficult for injured patients to find legal representation. My interviews with malpractice attorneys suggest very clearly that the incidence of medical negligence has not declined, but that suits are less common because the costs of pursuing a medical negligence case has skyrocketed. One of the reasons is that there are requirements that both sides obtain testimony from expert witnesses, and expert witness fees are very high. Also, public opinion has turned against plaintiff lawyers, so that they have difficulty finding juries that are not biased against them. So they only take cases where there is catastrophic injury, clear medical negligence, and a violation of the standard of care. One might observe that cesareans have become the standard of care, but that does not change the fact that the rise in cesareans is fueled by something other than actual malpractice litigation risk.
Ms. Roth, did these attorneys offer any ideas as to why public interest has turned against malpractice claimants, and resulted in hostile juries? Do doctors generally win their suits, and if so, what other than lawyer fees drives their fear of being sued?
"The reason that malpractice litigation is declining is because it has become increasingly difficult for injured patients to find legal representation"
And that is exactly what would be predicted if defensive C-sections lower the risk of being sued.
Malpractice litigation is done by lawyers on a contingent fee basis. That means that the client pays nothing. The lawyer pays for everything and takes one third of any financial award. It is expensive to mount these cases, but there is the potential for multimillion dollar payouts that cover all expenses and leave millions left over.
Since lawyers use their own money to bring the malpractice cases, they will only take cases they believe they are likely to win; otherwise they will have wasted their entire investment in the case. In order to win a malpractice case, the lawyer must show that outcome of the medical situation would have been different if the doctor had done something different. In the case of obstetrical malpractice that typically means that the lawyer must show that if the doctor had done a C-section, or done one sooner, the baby would have been perfectly healthy.
So if an obstetrician performs a c-section at the first sign that something might be wrong, or even before anything goes wrong, any lawyer is deprived of the heart of the case. The case becomes unwinnable and no lawyer will take an unwinnable case. The entire purpose of a defensive C-section is to make sure that the case is unwinnable and therefore will never me brought.
If the rate of obstetric lawsuits has stabilized because lawyers are refusing to bring lawsuits, then the dramatic rise in the C-section rate is working exactly as intended.
FYI, we'll have a post tomorrow from a plaintiff attorney.
Doctors usually win malpractice lawsuits that go to trial. Very few cases go to trial - most are settled. That is true in other types of civil law as well.
Juries have become hostile because proponents of tort reform have done an effective job of turning the public against trial lawyers, convincing people that "frivolous lawsuits" are the cause of rising health care costs. In fact, no frivolous lawsuits make it into the system, many case of negligence are unable to find representation, and the costs of lawsuits to the health care system represent less than 1/2 of 1% of total health care costs. But there has been an effective propaganda campaign and that has made it harder for trial lawyers to find jurors that are not biased against them.
emjaybee - I totally defer to Dr. Roth on this, but the impression that I have gotten is that the public has become increasingly anti-plaintiff's bar (and anti-plaintiff, as I'll touch on in my post later in the week) because of tort reform lobbying. Lobbyists and the media have managed to construct a narrative that plays in perfectly to stereotypes about lawyers and our most miserly bootstrappy gut reactions. I don't have any empirical evidence to back it up, but plaintiff's attorneys have told me that potential jurors just have a visceral reaction to the idea of someone profiting from litigation -- remember the McDonalds coffee case? The figures in birth cases are astronomical taken out of context, but they don't look so great on a balance sheet weighed against a lifetime of medical bills.
That, and I suspect that lots of people don't understand torts on a fundamental level.
Well-said, Courtroom Mama.
Once upon a time I read Tom Baker's The Medical Malpractice Myth, which similarly stated that medical malpractice *lawsuits* were not as much of an issue as medical malpractice *itself*. I believe, in fact, that he said that rates of malpractice had gone up, but that the number of suits has not risen (probably as a result of factors such as Courtroom Mama put quite well above).
Dr. Roth: Would you have any information on that, regarding the rate of malpractice v. actual suits filed?
As a note, a medical malpractice defense attorney, with whom I worked with, agreed that her cases were a little easier, because no one seemed to want to give "excessive" amounts to people who didn't "earn it" - define that as you will.
Otherwise, I agree with Courtroom Mama on all points. :)
I believe that malpractice lawsuit fears may not be entirely evidence-based, but are substantial fears nonetheless. I have never had a lawsuit filed against me, but just the knowledge of the experience from those that have is enough to make me extra anxious whenever a baby is coming slowly, or has a questionable fetal tracing. When I practiced in New Zealand which does not have a system of malpractice torts law, I knew that if a bad outcome had unexpectedly occurred, that my management would be judged by a medical supervisory committee to be within the standards of care. I am uncertain whether my C Section rate was lower, but my anxiety level certainly was.
Many people are afraid of flying despite the fact that it is much safer per mile travelled than driving a car, but news stories of mass devastation when an airliner goes down, however infrequent, are enough to deeply implant that fear. This may be a similar situation.
@Dr. Dorn: That's a great summary of what may be driving the rise in c-sections - the fear is real, but not evidence-based. The question is whether disseminating more real information about how exaggerated that fear is might reduce the fear and thus lower the c-section rate.
@ANaturalAdvocate: I'm not sure how one could measure that. The Medical Malpractice Myth had a pretty interesting design - assigning medical doctors and nurses to evaluate medical records and using consensus of 2 or more care providers that there was negligence as the basis for determining the actual frequency of malpractice. Unfortunately, I don't have data that can illuminate that and I'm not sure that anyone is collecting more contemporary data like that.
""the fear is real, but not evidence based"
Recent data shows that 77% of obstetricians will be sued at least once during their career. If someone had a 77% chance of getting Alzheimer's would you say that their fear was not evidence based?
Exactly what percentage of obstetricians should be sued before it is "evidence based" for them to fear malpractice suits?
Prof. Roth, you are making a very serious mistake in interpreting your data. You have pointed out a negative association between the C=section rate and malpractice filings and blithely announced that this means obstetricians are ignoring the "evidence." But as I said above, and as you have so far failed to counter, it is more likely to reflect the fact that defensive medicine is accomplishing its goal of reducing lawsuits, and your claims are the ones that are not evidence based.
@Amy - My point about fears not being entirely evidence based was based partly on studies which have shown that when laws have been passed to cap malpractice liability payouts, the practice patterns have not changed. Maybe this still reflects the simple fear of being sued regardless of the penalties, due to the awesome time and anxiety involved with dealing with the legal system in that way.
I have simply accepted the fact that I am likely to be sued, probably due to no fault of my own, and will deal with that when the time comes. I document all my cases expecting them to be reviewed by a plaintiff attorney some day, describing my conversations with patients, informed consent, my rationale for management, etc.
Perhaps as the other OBGYN in this discussion you would be willing to comment on your own feelings about litigation and how that might have affected your practice before you retired, and even whether this legal climate might have affected your decision to leave obstetrics.
Very interesting findings. My gut feeling was that malpractice lawsuits are not as high as has been suggested in many discussions about c-sections. I know for myself, the thought of suing seems really daunting so it would have to be a really serious circumstance for me to put all that time and money into a suit.
"I have simply accepted the fact that I am likely to be sued"
You've hit on the critical point. If obstetricians believe that their risk of being sued approaches 100%, the number of lawsuit filings in a given year is meaningless.
Prof. Roth bases her claim that medical malpractice is a "myth" on the assumption that the deterrent effect of malpractice suits is tied to the number of malpractice suits per year. That assumption is the equivalent of saying that bank robbers decide whether or not to rob a bank based on how many people went to jail last year for bank robbery. What keeps aspiring bank robbers from robbing the local bank is the belief that if they are caught, they will go to jail. It makes no difference to them how many individuals actually go to jail for bank robbery each year.
The deterrent effect of malpractice suits on obstetricians is similar to the deterrent effect of jail sentences on potential bank robbers. The fact that the likelihood of being sued is high is what drives doctors' actions, just like the fact that the likelihood of going to jail is high is what restrains people from robbing the local bank whenever they need cash.
Amy,
Prof. Roth has a different interpretation of the data. She is a PhD sociologist with a grant to research this. Let’s not let this degrade into mudslinging in which we interpret each other’s motives a blithe, callous or flippant.
Amy, you’ve misinterpreted one of the questions raised in this article, which is whether or not the widespread practice of defensive medicine is rooted in an understanding of actual risk. No one can deny that the fear exists, as it’s been self-reported by physicians for years and reflects dominant U.S. society’s increasing risk-aversion. We need to trust our physicians to define their own emotional and psychological reality and I don’t see the Roth is seeking to take that away or minimize that fear. Rather, I see her trying illuminate and provide insight into a sensitive subject.
Your 77% example adds weight to the point that perhaps physicians (a horrid, sweeping generalization for which I apologize in advance) are very afraid but not analyzing or demonstrating willingness to understand actual risk. How many babies and surgeries does an OB-GYN deliver/perform over the course of a career? To me, even a 100% chance of being sued once sounds like outstandingly good odds. Working in a high-risk specialty and having a 23% chance of making it through my entire career and thousands and thousands of babies and gyn patients without getting sued? Sounds great.
Of course, that's easy for me to say, right? I'm sitting here on my duff writing about it, not living with the fear of never knowing when I'm going to get screwed over for something I couldn't prevent or wasn't even involved with in the first place (see newest post, Hanging Up My Gloves)
Roth is not a Lone Ranger here. Here's an excerpt of an article coincidentally published a few weeks ago:
Physicians still fear malpractice lawsuits, despite tort reforms
Physicians' fears of being sued for malpractice are out of proportion to their actual risk of being sued, according to a recent study by a University of Iowa researcher and colleagues.
The study also suggests that tort reform legislation aimed at controlling malpractice costs has not lessened physician concerns about malpractice lawsuits, and may not be effective in altering defensive medicine practices -- like ordering unnecessary lab tests -- that can drive up the cost of health care.
"We found that both generalist and specialist physicians fear being sued for malpractice even in states where their risk of being sued is relatively low," said senior study author David Katz, M.D., associate professor of medicine with University of Iowa Health Care. "One likely explanation is that physicians' concerns about malpractice are driven more by their perception that the malpractice tort process is unfair and arbitrary and less by their actual risk of getting sued."
Katz, who also is a research investigator in the Center for Research in the Implementation of Innovative Strategies in Practice at the Iowa City Veterans Affairs Medical Center, conducted the study with colleagues from the Center for Studying Health System Change in Washington, D.C., and Harvard School of Public Health. The findings were published in the September issue of the journal Health Affairs.
The research team surveyed a nationally representative sample of physicians and found high levels of concern about being sued for malpractice among all physicians regardless of specialty or geographic location.
Physicians in the highest-risk states, however, expressed only modestly higher levels of concern than physician in low-risk states (4.3 points on a 100-point scale). This small difference was particularly surprising given that physicians in the least risky states have less than one-third of the malpractice risk as those in the most risky states. The researchers used objective measures of risk, such as malpractice premium rates and risk of incurring a paid malpractice claim, to calculate physicians' actual malpractice risk.
"The high levels of malpractice concern, even among physicians in relatively low-risk environments, is striking," Katz said. "One possible explanation is that most physicians do not have the information to accurately access their actual risk of being sued."
Many tort reform efforts are driven by the idea that fear of being sued leads physicians to practice defensive medicine, which raises health care costs.
So, where do we all go from here?
"you’ve misinterpreted one of the questions raised in this article, which is whether or not the widespread practice of defensive medicine is rooted in an understanding of actual risk."
Prof. Roth is using the number of malpractice filings as a proxy for the risk of being sued. But we don't need a proxy. An obstetrician's risk of being sued is 77%, and that number has been rising steadily for decades.
She's looking at the wrong numbers.
Which makes more sense Jill?
1. Obstetricians are practicing defensive medicine because they don't realize the risk of getting sued is low.
or
2. Obstetricians are practicing defensive medicine because the risk of being sued is 77% and that is very high.