Litigation and the obstetric mindset

While doing research for an article I'm writing, I spent a lot of time on the OB-GYN-L forums, where OBs and the occasional family physician or midwife discuss various ob-gyn topics amongst themselves. I read through the past five years of discussions to gather the various perspectives OBs hold on home birth. I often got sidetracked into reading threads not directly related to home birth, such as posts about about VBAC or breech. I was amazed at how terrified OBS are of being sued. Over and over, the OBs on this forum caution each other to be careful, that every patient is a potential litogen, that if any little (or big) thing goes wrong, the patient will turn around and sue, claiming that they were not properly informed of X or Y risk. And, unfortunately, this does happen often enough to somewhat justify that fear.

I identified several themes arising regarding litigation and home birth. Many OBs are more supportive of home birth personally than they are professionally. In other words, if their malpractice insurance carriers or hospital administration allowed it, more physicians would be willing to collaborate with or backup home birth midwives and their clients. However, in today's litigious climate and with the restrictions dictated by the hospitals they work at, they are unwilling to risk a lawsuit, termination of employment, or "going bare" (working without malpractice insurance) in order to provide support to home birthers. From a November 2006 OB-GYN-L conversation about the legalities of backing up home birth midwives:

Anna Meenan, MD, FAAFP: The legal system is definitely the stumbling block, but if OB's were really serious about working with and supporting midwives, it might be possible to put in place legislation protecting receiving hospitals and OB's in all states.

Ronald E. Ainsworth, MD, FACOG: It's not just the legal system per se. My malpractice carrier will not cover me for any birth that is a planned out of hospital delivery that I agreed to provide backup coverage for. I'm a proponent of patient choice and autonomy, but not at the risk of my career or financial ruin to myself and my family....It's not just "boost rates or cancel insurance," my carrier excludes any coverage for malpractice arising out of a prearranged relationship with a patient who attempts out of hospital delivery. That means I would be practicing bare. NO THANK YOU!!

One OB, Garry E. Siegel, described how a malpractice attorney advised his practice to specifically state that they did not participate in home births in any way, as a cover-your-butt policy:

A couple of years ago we had a little "run" of home births, likely planned, in our CNM patients. Long story short, while not debating the safety of home birth (because there are studies that likely prove it is OK in low risk patients, though it would take a gigantic study to show a difference if one exists), a wise attorney from our Med Mal carrier asked us if we TOLD patients up front that we don't participate. Well, we didn't, but now all new OB patients read and sign a form that includes, among other things, a statement that says:
This practice does not participate in home births in any capacity.
If patients want to discuss this, we don't accept them or discharge them.
If they deliver at home "behind our back," we were up front! (Jan 28, 2008)

Obstetrician Barbara Nichol talked about how terrible it is to be sued--something that almost all OBs experience at least once during their careers. Her remark was set in a longer comment about the need to treat home birth transfers respectfully, rather than antagonistically:

90 percent of us get sued. It's an unbelievably awful experience even when you did nothing wrong, and it's worse when there's some real question on that point. I admit to a lot of frustration and upset when an obvious litogen (e.g. local favorite: refusing GBS prophy because 'antibiotics cause asthma', don't get me started on this nightmare of junk science) walks through the door, but communicating those emotions to the patient just starts things off on the wrong foot altogether, as I'm sure y'all know already.

Litigation isn't always about who is truly at fault, but about who has the deepest pockets. Because many home birth midwives choose not to carry malpractice insurance--including the CNM I used for Dio's birth--if there is a lawsuit, it will often pass onto those with the largest insurance premiums, regardless of fault. From a discussion about liability when a physician assumes care for a home birth transfer:

Unfortunately, IMHO, the hooker here is the legal system. When a patient who chooses OOH birth does have a problem, and is brought to the hospital (as RESPONSIBLE midwives will do), it's often the physician and the hospital who bear the brunt of the family's anger and frustration, and often find themselves in a lawsuit, brought on by a patient with whom they have not had the opportunity to develop rapport, etc. That's why many obs are unwilling to support this situation. Is this fair? probably not. It is, however, sometimes a matter of self-preservation. (Larry Glazerman MD, St. Luke's Center for Advanced Gynecologic Care, Nov 26 2006)

A midwife on the OB-GYN-L list responded to Dr. Glazerman:

Unfortunately, Dr. Glazerman, you're correct. The distrust and antipathy goes both ways, though. Women who transfer from a home birth are often treated very rudely by physicians and hospital staff, even to the point of having CPS called b/c they attempted home birth. Midwives' records are ignored and patients treated as if they had no prenatal care. Time is wasted and valuable information ignored. (Jamie, Nov 27, 2006)

Another physician, D. Ashley Hill, joined the conversation and added these remarks:

As the recipient of several surprise train wrecks from planned home deliveries or lay birth deliveries gone bad, I agree that very often "the hospital" and "those doctors" end up being the bad guys. Most patients are not pleasant after 6 hours of hard pushing followed by an eclamptic seizure and postpartum atony with hemorrhage. Typically they don't like hospitals or physicians to start with and are on the lookout for anything else to go badly.
What many of our non-US colleagues may not know is that in our legal system the lawyers preferentially attack the party with the best insurance, regardless of the level of fault, therefore there is little impetus for lawyers to go after the person who attended the home delivery. Instead, they go after the doctor and the hospital where the patient ended up when things went awry at home. (Nov 26 2006)

I was also surprised that many OBs feel trapped by the system, portraying themselves as victims and malpractice lawyers as The Big Bad Guys. Physicians comment about how ACOG "is a hostage of the legal system," how "the legal system is the king (or queen)," or how "trial lawyers run the whole show."

If you want some really fascinating reading, browse through the OB-GYN-L archives and read threads about VBAC or home birth. It's kind of like watching a car accident--you know you should turn away, but it's just so morbidly fascinating that you can't stop looking. (Select a month, and then click on "thread" view. Read from bottom to top, since the earliest posts are on the bottom.)

I am trying very hard to understand the obstetric mindset when it comes to risk, malpractice, and litigation in relation to choices such as VBAC or home birth. I can kind of understand why OBs act and think the way they do, and I have been trying very hard to see things through their eyes. But on the other hand, their attitudes and behavior directly impact women's bodies, women's birth experiences, and women's range of childbirth-related choices. But still, I do understand what a hard place many of them are in, and the blame is multivalent: partly from patient litigation (real or imagined), partly from malpractice insurance or hospital policies, partly from personal experience (such as attending a VBAC with a bad outcome), and partly from personal preference ("I don't see why any woman would want a VBAC--what's the big deal about having a cesarean?").

I was discussing this with a family doctor friend. Below are her perspectives on OBs and litigation, from the experience of a family physician trained in a medical setting and who works alongside OBs, but who herself practices with a very holistic, minimally interventive style of care. Below are her comments, reposted with her permission:

*****

On OBs and lawsuits: I can understand part of it, and part of it is an incomprehensible mystery to me. OB, as a surgical specialty, has a much different "flavor" than the FP [family practice] world I trained in. OBs are surgeons, and many have an "I can fix that!" kind of personality, where issues are seen as black and white, and they rely heavily on their judgment and skills and quick decision making. Surgical training is much more hierarchical than generalist training, and I think that builds in much more of the power issues that we see in medicine so much. OBs primarily view their clients as patients, and their decisions as scientific and don't concern themselves with the softer, social/emotional issues. Because of the power play issues and the idea that the OB is the knowledgeable important person in the relationship, I think this leads to a lot more worry on their part of the consequences of their decisions. The average OB is trained and socialized to be the decision maker and leader in the doctor-patient relationship, and to bear the responsibility for the outcome. They are also socialized to be very risk aversive - but only the risks that impact them the most. There is this overriding cultural expectation that OBs are expected to produce a perfect baby every time - but in reality, I think OBs propagate this much more than their clients do. I think so much could change if OBs (and many other kinds of doctors) could let go of the power differential and allow themselves to be seen as human.

As a family doc, even though I trained in a highly traditional medical setting, I was still trained by family docs, with a strong flavor of know-the-evidence, partner-with-your-patients type style. I think midwives, of course, lean even farther into the psychosocial part of their relationship with clients in their training. I think the more partnership or service style of practice leads to less fear that you will be held solely responsible for your decisions. Our generalist training, and in midwives' case, their woman-centered training, shifts more responsibility onto clients themselves, and I think leaves us feeling less worried about litigation, and more worried about quality care.

Of course these are big generalizations, and there are exceptions to everything, but in general the culture of the surgical specialty of OB is just so different than the culture of midwives, or even family docs.

I don't worry about getting sued very much. It rarely enters my mind as a factor in decision making. I worry a lot more about educating, and about encouraging my clients to make their own decisions. I worry about forming good relationships, providing room for disappointment to be expressed when things don't go the way we hoped, and making our decision making processes completely transparent and understandable to my clients. I worry about making sure my clients understand that there is a lot of uncertainty sometimes in what we do, that no outcome is guaranteed, and that I strive for excellence and hope for luck along the way, too. I hope that the relationships I form with my clients will mean that they can tell the difference between malpractice, and an honest human being doing their best.

Part of the lawsuit crazy fear really does seem incomprehensible to me, though. When I was pregnant with my fourth child, I went to a friend (or more acquaintance) who is an OB for prenatal care, and we had the weirdest argument over me being tested for gonorrhea and chlamydia in early pregnancy. I didn't want to be tested because I have zero risk, and it costs money. She kept saying that it was important to be tested, regardless of risk, because of "medical legal reasons." We went around and around until I finally said: "Look, 'medical legal reasons' only come into play if I sue you, and I can assure and guarantee you right now that I'm never going to sue you for not testing me for gonorrhea and chlamydia. I understand the risks and benefits of being tested, and I refuse. Period." She was terribly flustered that I'd brought up the word "sue" and terribly flustered that I said "refuse" and was clearly uncomfortable and it was so strange to me. In my practice, I matter-of-factly explain the benefits of being tested, and if clients choose not to be, I feel quite content that even if they are making the wrong decision, it's their decision and their consequences so I don't have to be personally invested in it - while she clearly couldn't let go of the idea that by not following the "standard of care" I could somehow accuse her of malpractice later. I still can't understand why so many OBs are so terrified of being held responsible for outcomes they can't control - why are they so frightened of allowing the decision making to rest with the folks who have to live with their decisions!?