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Monday
Jan102011

Myths of Malpractice in American Obstetrics

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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

 

 

 

 


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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.

January 10, 2011 | Unregistered Commenteremjaybee

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.

January 10, 2011 | Registered CommenterJill

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.

January 10, 2011 | Unregistered CommenterAmy Tuteur, MD

So your interpretation is that the increase in so-called defensive cesareans caused the malpractice lawsuit rate to stabilize?

January 10, 2011 | Registered CommenterJill

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.

January 10, 2011 | Unregistered CommenterLouise Roth

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?

January 10, 2011 | Unregistered Commenteremjaybee

"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.

January 10, 2011 | Unregistered CommenterAmy Tuteur, MD

FYI, we'll have a post tomorrow from a plaintiff attorney.

January 10, 2011 | Registered CommenterJill

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.

January 10, 2011 | Unregistered CommenterLouise Roth

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.

January 10, 2011 | Registered CommenterCourtroom Mama
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