Women and Ob-Gyns Need Reliable Medical Justice

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High-quality maternity and neonatal care is critical not just to individual families but to society as a whole: obstetrician-gynecologists (ob-gyns) help ensure that babies are born healthy and work o optimize mothers' health, as well as to advance quality health care for women of all ages.

Ob-gyns are among the most frequently sued medical specialists. According to a 2009 survey, 90 percent of board-certified members of The American College of Obstetricians and Gynecologists (ACOG) have been sued. On average, ob-gyns can expect to be sued on 2.7 occasions in a professional lifetime. One third of ob-gyns sued have been sued four or more times. Forty-three percent reported suits for care provided during residency training.

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Rather than reflecting rampant negligence and maltreatment of patients, these numbers reflect that even the best care cannot guarantee a perfect birth outcome. Ob-gyns get sued for less-than-perfect outcomes--instances in which no one may be at fault but family medical costs can quickly skyrocket.

Our current medical liability system fails to provide appropriate and timely compensation to persons injured, fails to deter real negligence, and impedes efforts to correct medical errors and improve patient safety. Under the current system, medical justice is unreliable for both patients and physicians, and patient care is harmed.

Access to ob-gyn care has been diminished. This means less prenatal care as doctors decrease high-risk obstetrics (30 percent), reduce deliveries (14 percent), and stop obstetrics altogether (8 percent)--avoidance behaviors reported by 63 percent of ACOG members who responded to a 2009 survey. Access to preventive care is also diminished as fewer gynecologic surgeons are available to treat women with pelvic pain, infertility, or cancer.

In Southeastern Pennsylvania,19 hospital maternity units have closed since 1997 due to medical liability concerns and costs. In Philadelphia, only the city's six teaching hospitals continue to deliver babies. Statewide, there has been a net loss of 43 hospital ob units over the last several years. Yet safe hospital deliveries and increased availability of prenatal care are among the very factors that contributed to a greater than 90 percent reduction in national infant and maternal mortality during the twentieth century.

 Assurance behaviors, another element of defensive medicine, result in additional laboratory and imaging studies and consultations. Both increase health-care costs and may subject patients to the risks of false-positive test results. Liability costs, including defensive medicine, are by one estimate $56 billion, or 2.4 percent of the nation's annual health-care tab.

Reliable justice would help improve the physician-patient relationship and medical care overall. Two grievous birth outcomes in particular--neurologic impairment, including cerebral palsy, and shoulder dystocia--can have a devastating effect on a patient and her family, as well as on an ob-gyn's relationship with her patient, her own family, and her profession. Neither of these outcomes is likely related to the obstetrician's actions or inaction. But multi-million-dollar jury awards often follow.

Despite dramatic improvements in maternal and neonatal morbidity and mortality, the rate of cerebral palsy remains unchanged. Epidemiologic studies show that less than 10 percent of cases can be attributed to events occurring during labor and delivery. Yet the costs of caring for and educating these children are substantial, and malpractice lawsuits are often the only source of financing, regardless of an absence of fault.

Shoulder dystocia constitutes an obstetric emergency. A newborn can suffer permanent injury to the brachial plexus--nerves supplying the infant's arm--when the baby's head delivers but the shoulders remain trapped in the mother's pelvis. More critically, the umbilical cord is compressed and the baby is deprived of oxygen. The obstetrician has only minutes to deliver the baby before it suffers brain damage or dies. Before intervention, the brachial plexus is already stretched; appropriate maneuvers to free the baby necessarily further stretch it. About 88 percent of brachial plexus injuries result in only transient impairment of the baby's arm, but unavoidable permanent injury afflicts the remainder.

Today, "experts" often testify that nerve injury itself proves obstetrical negligence, and omit that the obstetrician saved the baby's life. Some courts have denied obstetricians their right to explain brachial plexus injuries. Since this condition cannot be reliably predicted, the injury has occurred naturally, and the baby will die if not delivered within minutes. Should the obstetrician be held responsible for an outcome beyond her control? Is a lawsuit appropriate when the obstetrician saved the baby from a life-threatening circumstance?

When a doctor recognizes that there is no relationship between the quality of her care and the courtroom outcome, justice no longer exists, and a skilled and caring physician may be lost from the profession. It is not unusual for physicians to think about a change in specialty, practice location, or even career after an adverse event. Some physicians are so affected as to experience symptoms of post-traumatic stress disorder.

Most adverse health outcomes are systems errors, not acts of negligence by otherwise skilled care providers. Root cause analysis allows us to discover how established safeguards failed, and make important corrections. The National Transportation Safety Board similarly investigates airplane crashes and near-misses to make commercial aviation safer. The willingness of participants to disclose actions and thought processes is essential to root cause analysis. The fear of litigation, however, makes health professionals think twice. Efforts to improve patient safety and quality are hindered.

A system in which each case turns on unique facts and circumstances, in which cases involving the same facts have opposite outcomes, and in which outcomes provide no general lessons, methods or rules to improve patient safety is unreliable by definition. Patients need assurance that avoidable medical injuries will be recognized and compensated and that safeguards will be implemented to protect other patients. Physicians, especially ob-gyns, need assurance that in the event of an adverse outcome, their professional actions will be objectively evaluated to yield broadly applicable conclusions and recommendations. If health care is a right, society needs to determine who will compensate patients for unavoidable adverse outcomes. That depends on a reliable system of medical justice.