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Who is defending whom from what?

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By Barbara Katz-Rothman, PhD

Who is defending whom from what?  Thinking about ‘defensive medicine’ forces that question upon us – and we usually answer that doctors are responding to a fear of malpractice suits, as if Malpractice Suits themselves were the driver.  In truth, they are not even a big part of the rise in medical care expenses.  Malpractice insurance issues and the discussion surrounding them are a symptom, not a cause in our ‘health care crisis.’

That does not mean that fears of being sued are not significant for practitioners:  Individual physicians are of course going to be worrying about defending themselves, and would be fools not to worry.  In the United States especially —where each child is born into great and unending poverty unless lucky enough to be born to a parent willing and able to pull it out, where basic needs go unmet, where medical care for children with disabilities can wipe a family out financially, where medical bills are the leading cause of bankruptcy — a needy child inevitably necessitates a search for deep pockets.  If I had a child who used a wheelchair, I’d want the best possible chair, and probably a sports-use chair besides; the best household adaptations money could buy; every imaginable object and service that would make that kid’s life better.  And if I had to sue my mother to get it, why sue I would – and she’d be more than happy to be sued, if there was some insurance company backing her.

But a physician is not going to be so willing to use their insurance and small wonder – not likely that more than one grandchild is going to have such an opportunity, falling down grandma’s steps or whatever, but surely more than one patient will.  So it makes sense to me that individual physicians worry, and worry a lot, about being sued.   The individual physician, however, is the least of our problems.  Our energy needs to go to a higher social level, to address the more fundamental problem – what makes an action ‘sue-able,’ what makes a suit ‘win-able.’  It’s not just, or even mostly, about the condition of the child or even about some notion of preventable damage.

If a physician did something that vastly increased the chances of a child being born prematurely, that vastly increased the chances of a child’s being born too small, with the resultant vastly increased risk of neurological damage, perhaps blindness, perhaps cerebral palsy, well – a commonsensical approach would think that would be a sue-able and win-able situation.  And surely it would be if the alternative to the birth of that child was to inform the mother of the availability of prenatal testing and selective abortion for the condition that causes the prematurity.   The woman who is not informed of that option can indeed sue and, we have seen, win.   The woman who has rejected such testing for whatever reason – religious belief, commitment to the baby yet to be born, a strong commitment to valuing the life of all people with disabilities – that woman is on her own, with no one to sue, and that doctor is home safe.

But if the alternative was NOT to implant two fertilized eggs following IVF (thus increasing dramatically the chances of twinning, with resultant prematurity and all that follows) –well then, it seems to be a very different situation – the doctor whose behavior caused that prematurity  is a hero, and the birth of those twins are a medical miracle to be rejoiced.  Will the needs of those children be met?  Since IVF is so very expensive, since the infertility of poor women while far higher than that of rich women is not so quickly covered by insurance of any sort, most of those twins will be born to well-insured parents who do not have to seek a deep pocket to sue. 

Is any of this a sane way to run a medical system?  Clearly not.  Can we blame individual physicians for informing, for insistently informing, for seeking ‘informed consent’ (the far safer for them alternative to ‘informed refusal’) for prenatal testing to avoid the birth of a sue-able child?  Hardly. 

What a wild direction we are heading in, as we learn the many many ways in which all of us, and all of our children, are ‘at risk’ of some terrible, and terribly expensive, condition.  Dare a physician not explore the possibility of all the potential genetic and other risks a woman faces in a pregnancy?  Dare (s)he not inform the woman – insistently, repeatedly, and on the record –of those risks? 

In a better kind of insurance system, people would be insured for need – if you have a very expensive kid, one who needs wheelchairs and ramps, expensive surgeries, long-term nursing care, or all of those, then those needs would be met.  That is how universal health care coverage works in most of the world.  But we have not got that kind of system, so instead, individuals have to sue.  Private companies insure practitioners, and patients with unmet needs can sue practitioners who in some way failed them. 

I’ve often thought that if you could lay out all of the risks, all of the increased odds of this, chances of that, genetic predisposition for something else that each person faces, it would be a miracle if anyone was willing to give birth to anyone ever again.  And yet we are setting up a medical insurance system that makes that kind of bludgeoning with information all but inevitable, as risks are shifted off the shoulders of individual physicians or their malpractice insurance companies , and onto the bellies of pregnant women.  We say to families:  If you had all the information, and had this baby anyway, well then it’s your problem to meet the needs of your expensive child.  



Barbara Katz Rothman is a professor of sociology at CUNY. Her work is both interdisciplinary and international in scope, focusing on issues in Medical Sociology, Bioethics, Gender and the Sociology of Knowledge. Her professional honors and awards include the Lee Founders Award of the Society for the Study of Social Problems, the Jesse Bernard Award of the American Sociological Association, the mentoring award of Sociologists for Women in Society, the Award for the Promotion of Human Welfare of the Southern Sociological Society.





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Reader Comments (43)

And if we had that kind of insurance, all children would be provided with appropriate health care, regardless of the CAUSE of their disability. Why is it only parents of babies born with attributable injuries that get the safety net of all that money? What about parents of babies born with or later acquiring devastating health problems, through no-one's "fault"?

January 12, 2011 | Unregistered CommenterLiz Chalmers

"If a physician did something that vastly increased the chances of a child being born prematurely, that vastly increased the chances of a child’s being born too small, with the resultant vastly increased risk of neurological damage, perhaps blindness, perhaps cerebral palsy, well – a commonsensical approach would think that would be a sue-able and win-able situation."

It is!

There are four elements to a medical malpractice suit: duty, breach, damages, causation.

Simply showing that a baby (or anyone) has been injured is merely one component and that's why the existence of damages is not enough to mount a successful lawsuit.

First, you must show that the doctor had a duty to the patient.

Then you must show that the doctor breached that duty. The fact that things didn't turn out perfectly is a maloccurrance, not necesarily malpractice.

Third, there must be damages and those damages must be significant, which often means that they must be permanent, A trip to the NICU for TTN after a C-section does not meet that standard. Permanent neurological injury does meet that standard.

Finally, you must prove causation, that what the doctor did cause the damages.

All four elements MUST be present for a successful malpractice suit. Three is not enough.

And doing something that MIGHT have caused damage is not enough either.

Most importantly, there must be a breech of duty. If a doctor performs a preterm C-section in order to prevent a stillbirth, and the scientific evidence shows that the risk of stillbirth was a reasonable fear in that clinical situation, the doctor has not breached his duties, regardless of outcome.

January 12, 2011 | Unregistered CommenterAmy Tuteur, MD

Prof. Katz-Rothman,

Do you think it is ethical for homebirth midwives (CPMs) to practice without any malpractice insurance at all, and leave patients to fend for themselves in the case of a brain damaged or dead baby?

January 12, 2011 | Unregistered CommenterAmy Tuteur, MD

@Dr Tuteur.

Maybe if OB-GYNs didn't act like they know everything & own the bodies of the women they treat, more women would feel okay giving birth in your so called "safer" hospitals. The very fact is, many physicians treat women like they are an incubator. We're real, we have feelings, we are allowed to want to have our births a certain way. Get over yourself.

January 12, 2011 | Unregistered CommenterRachael

Let's all play nice here! I understand that there have been concerns about Dr. Amy's participation before, but we think she can provide unique experience and insight into this conversation particularly and are appreciative of her input. She's been behaving, I think we can as well, yes?

Dr. Katz-Rothman: Your suggestion here - and please correct me if I'm misinterpreting - seems to be that health insurance cover all, without regard to causation, income, etc. Fair enough. However, do you have a suggestion for how we could work to punish (or remediate?) practitioners who engage in poor medicine, if not through the current tort system? Or do you suggest some sort of combination method?

Dr. Amy: Please remember that CNMs can deliver babies at home as well and, in fact, the majority of "homebirth midwives" in my area are CNMs. To that end, I would like an answer to your question, although I would not limit it to CPMs - and perhaps wouldn't leave in the last clause. :)

January 12, 2011 | Registered CommenterANaturalAdvocate

"Dare a physician not explore the possibility of all the potential genetic and other risks a woman faces in a pregnancy? Dare (s)he not inform the woman – insistently, repeatedly, and on the record –of those risks? " And yet they don't. Why? I had an OB appt 2 weeks ago and the OB discussed the GTT. All she said was "I think it would be cool if you did it, things change." That was my informed non-consent, cause I will not take the test unless every question I have is answered. Not to my liking, I just want them answered. I may not agree with those answers but I need to know say what my risks of a low birth weight baby are if I am put on GD diet and have no GD. And if that dr is so scared of being sued why didn't she give me information? ANY information. She gave me none. I will ask lots of questions but there are women who don't have the vaguest idea about the risks, assume there are none since the dr. recommended it, and so won't ask any questions.

@ Dr. Amy re: mws and lack of insurance. Most mws aren't even able to purchase insurance even if they wanted to. And what happens when someone sues a mw with no malpractice insurance? The same thing that happens when you sue a driver with no auto insurance, they still have to pay. Just doesn't come out of their insurance. But most women don't sue midwives. Why? Because they had informed consent. They knew of their risks if there were any.

January 12, 2011 | Unregistered CommenterMichelle

"But most women don't sue midwives. Why? Because they had informed consent."

No, that's not why.

Medical malpractice cases are contingent fee cases. The parents pay nothing, the lawyer pays all expenses and they split any financial award (usually the lawyer gets one third). Therefore, lawyers will ONLY take cases in which they can recoup their investment of hundreds of thousands of dollars, and make a profit besides. Only malpractice insurance can provide that type of financial award, so lawyers literally refuse to sue people without malpractice insurance.

Many women who have lost babies at homebirth have posted publicly on my blog or written to me privately that they cannot get a lawyer to even look at their case once the lawyer finds out that the midwife has no malpractice insurance.

The bottom line is that midwives who carry no malpractice insurance leave the parents to fend for themselves without any possibility of financial assistance.

January 12, 2011 | Unregistered CommenterAmy Tuteur, MD

My father used to run a small insurance business. The only way insurance works is if the amount that is paid out is overall less than what is paid in. Basing insurance on need would bankrupt an insurance company very quickly (and insurance is not very profitable to begin with). The insurance that works the best is insurance for catastrophic events ONLY. The problem with our current insurance system is that people expect it to behave like universal health care does in other countries. But when an insurance company covers every kind of routine care or checkup, it has less money left over for those catastrophic cases. Some prevention care is important in order to make large payouts less likely to be necessary, but overall, the less that is spent on routine checkups and small procedures under $1000, the more able an insurance company is to cover the larger costs, especially of long-term care. That's part of the reason why many started dropping expensive payees, because to sell their product they had to pander to those who would need it least, by offering something they were more likely to use more often. But because they use it more often, now when they REALLY need it, it isn't available, which defeats the purpose of insurance altogether. So, broken system = yes.

From an economic standpoint, that's also part of the reason (one part anyway) that costs have gone out of control. People purchase products (such as medical treatments) based on what they can afford to pay. With a 3rd party payer (insurance) footing a lot of the bills, when a procedure is recommended by a physician, we don't ask how much it will cost (often we don't find out until after it's done), or if there is a less expensive alternative that is also likely to work. We just go for it and expect insurance to cover it (then get ticked off when they don't). Pharmaceutical companies, hospitals, surgeons, etc. know this and charge what they think they can get from the insurance company, rather than what they believe most patients will be able to pay (obviously, in addition to cost of materials, time, education, etc.).

Just a few pieces to the puzzle to consider.

January 12, 2011 | Unregistered CommenterHeather

Just backing up Michelle that malpractice insurance is not an option for most midwives--hardly fair to blame them for that.

One of the elephants in the room is that In Birth, There is Always Risk. There is, pace Dr. Tuteur, risk present in a hospital birth. Women die and babies die in hospitals too, sometimes due to negligence, sometimes due to factors that could not have been reasonably detected or prevented by anyone.

The real struggle right now on this blog and elsewhere is to answer the question, "how do we manage this risk?" In the face of evidence that hospital birth, as practiced by most U.S. hospitals, does not and cannot eliminate risk entirely, and that it in fact may introduce unnecessary risks in the form of overuse of interventions like c-section, homebirth or birth-center birth with midwives appears less risky to (at present) a small percentage of women. Whether women have the right to choose this is a political issue; whether it's more or less risky than the hospital is a battle we fight with statistics, and in my opinion, the statistics bear out the safety of out-of-hospital birth for normal pregnancies.

But the statistics battle aside, what would benefit all women giving birth would be more honest, realistic, non-fear-based discussions of risk that is present at all births. Currently many OBs have an incentive to exaggerate risk--both to get women to do as they wish, and to provide cover for anything that does go wrong. This is not what I mean by honest discussion and it does harm in destroying trust between doctors and patients.

In order to be honest, this discussion needs not just stats, but an acknowledgment that statistical interpretation is up for debate. In other words, a doctor can say, "I'm convinced that the stats mean we should do X, but there are other doctors who disagree. If you want to get a second opinion, I support your right to do so and make your own decision."

January 12, 2011 | Unregistered Commenteremjaybee

I agree fully with Heather about the fallacy of our current health insurance system, used to pay for routine care.
I encourage everyone to listen to the 2 part series on This American Life on the strange evolution of this industry to understand why we so desperately need change - http://www.thisamericanlife.org/radio-archives/episode/391/more-is-less, and http://www.thisamericanlife.org/radio-archives/episode/392/someone-elses-money.

As for malpractice insurance, if my hospital would permit me, I would drop all of my insurance and given the huge drop in overhead, use the time that I am not working for the insurance company to spend even more time with individual patients, which I believe would further improve care and lower the chance that I might get sued. I would inform all patients at the door that this is the case, so that they would understand that there is no pot of gold waiting in the case of a bad outcome, and let them decide whether they want to take that risk. Is this ethical - I think so.

What I would rather see is an escrow fund that doctors pay into, and if it is never used to pay for liability, then that money would be returned to them when they retire. Now there's an incentive. I have already paid nearly a million in premiums over the years, not including the interest which would be accruing, and that would have been nice to see someday if I keep my nose clean.

If I should commit true malpractice I would expect my license would be jeopardized, and appropriately so. Granted, that does not help the injured party directly, but is a strong deterrent against sloppy care, which is the case in countries without malpractice torts and universal health insurance.

January 12, 2011 | Unregistered CommenterHenry Dorn MD
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