Tuesday, July 28, 2009

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!?


  1. I am SO GLAD you posted this. It is the trickiest card in the deck, the card played last, the card that trumps all others. I have often struggled for the right words to say to OB's, or about OB's, when fear of malpractice claims are mentioned. Not one body in the equation is at fault, but the equation itself. This is why it cannot be one OB, or even one hospital, that goes alone at this evolution back to normal birth: it MUST be a voluntary collaboration among hospitals, all maternity care providers, consumers, litigators, and legislators.

  2. Very enlightening, thank you Rixa! It is definitely a double-edged sword.

    The comments from your friend about the fix-it mentality of OBs especially resonated with me. That will definitely give me some stuff to chew on for the next few days.

    I've been re-watching past seasons of Lost, and the main character, Jack, is totally the typical Fix-It Doctor. He gets designated as the leader of the castaways because he is so good at taking charge and solving problems. But when he is asked to read a eulogy for the passengers who didn't make it, he refuses, even though people are looking to him as the leader. He's just not the warm-fuzzy guy. He's the fix-it guy.

    And herein lies the root of the problem with OB-centric maternity care. Women NEED the warm-fuzzy approach during pregnancy. Yes, sometimes, some of them need Mr. Fix It. But a lot of the problems that need fixing can be averted if you have the warm fuzzies to start with.

  3. jil said "But a lot of the problems that need fixing can be averted if you have the warm fuzzies to start with" very true . i used to teach this in med school to students as part of curriculum. Better patient relationships is no 1 cause of reduction in litigation! When they really start to 'get' this, the shared nature of health service between patient and provider then litigation rates fall. Patients sued to get a voice. If dialogue has been there all along then it becomes much less likely. Nice post Rixa.

  4. This was very interesting. I think you touched on the heart of the problem with the exchange between the OB & the FP -- essentially that the OB was insisting on testing lest she get sued, while the FP merely insisted on making sure her patients were informed, and then letting them make the choice.

    It seems like when people make their own informed decisions, they tend to be more satisfied with the results (and less likely to sue should something go wrong from *their* choice), than if they are forced or coerced into going along with something not of their choice, or if they just meekly do whatever the doctor says, assuming that they have no say in the matter, or that their doctor knows best.

    There was a breech birth gone bad a few years ago -- I don't remember much, except the baby didn't make it, and his mother named him Lucian. The mother chose a home birth because no doctor would let her even attempt a vaginal birth with a breech baby. Rather than being forced to "choose" a C-section, she went with a home birth. Anyway, the state and local doctors were all up in arms about the midwife's handling of the case, and her willingness to even let the young mother attempt a home birth with a known breech baby. The docs were talking about pressing charges, but the mother -- the woman who was closest to the situation, and endured the death of her baby -- defended the midwife, and said that it was her choice and the midwife did nothing wrong. Contrast that with parents who sue over their child's cerebral palsy, which may have had nothing to do with labor, but expected the doctor to be able to guarantee a perfect baby. That's an impossibly high standard.

    It seems that doctors have tangled themselves in their own web -- by being authoritarian, and acting as if they can ensure that nothing will go wrong as long as the little lady does just what she's told, they are in fact ensuring that when something goes wrong (which in fact it will do, eventually -- the law of averages and statistics necessitates this), they find themselves opposite an adversary, instead of alongside a person who also made the choices along with the doctor. When doctors don't allow patients to choose, then they by default take all the risk to themselves -- they made the decision, they get the credit or the blame.


  5. I agree with Kathy that drs have, to some extent, made the bed they're now sleeping in by setting themselves up as demi-gods, able to perfectly predict and produce a particular outcome.

    What I don't understand is this; how can a patient who has been informed, but not coerced by her doctor, sue said doctor for any outcome proceeding from the choice she made for her care? It seems to me that the safer route to take as an ob is to fully inform and then let the patient decide. How can that lead to litigation?

    It seems that pressuring a patient to submit to "protocol" is a much more legally dangerous position to be in. If, God forbid, anything goes wrong, not only was it the ob's decision, but he pressured a patient into something they didn't like to begin with!

  6. "What I don't understand is this; how can a patient who has been informed, but not coerced by her doctor, sue said doctor for any outcome proceeding from the choice she made for her care? It seems to me that the safer route to take as an ob is to fully inform and then let the patient decide. How can that lead to litigation?"

    Because, unfortunately, patients can and do sue in those exact circumstances--and you can bet there's a trial lawyer behind the patient, convincing them that they really didn't know X or Y risk that their OB explained to them...even though they probably did...hence the lengthy VBAC consent forms that a lot of OBs make women sign, if they allow VBACs at all.

    Read some of the threads about VBAC and see this for yourself. Most of the OBs on the listserve do not at all feel protected by the idea of informed consent. Even having patient sign special consent forms isn't seen as protection against litigation.

    I was so glad to have a midwife without malpractice insurance. Why? Because the choices I made were mine, and mine alone. Because her NOT having malpractice insurance meant that she didn't have to "make" me do or not do certain things to cover her rear end. With every choice or test (GBS, ultrasounds, Rhogam, etc.), she simply offered me the information and had me make the decision myself, without force or coercion or fearmongering.

    The only beneficiaries of malpractice insurance are trial lawyers. Everyone else are losers in the final equation: parents and doctors alike.

  7. "When doctors don't allow patients to choose, then they by default take all the risk to themselves -- they made the decision, they get the credit or the blame."

    That is the essence of the problem. This is why some of us demand something different and cannot be satisfied with the status quo of maternity care.

  8. This is a fascinating peek into OB's heads. It's been much easier for me to find information on what a midwife might be thinking, to learn about midwifery "philosophy," if you will, than OB thinking. Thanks for posting this.

  9. This is an intelligent post. I found that surgeons I trained with had the fix-it attitude. Surgeons compared themselves to "God" the only other one who could fix and feel that non-surgical physicians care and control disease, but do not cure.

    I don't find myself worring about lawsuits as much as worry about relationships and empowerment. Other physicians around me can't get the threat of malpractice off their mind.

  10. I am planning a homebirth with a midwife. However, I have been receiving pre-natal care from a hospital in another state. I intend to transfer that record to my local back-up hospital. I'd like to talk with them before hand and get acquainted so they know I'm not some extremist crazy lady or something and treat me like crap when I do come in.

    But if they're all so scared of litigation, will they be afraid to assign an OB to me? Will they dislike the idea of knowing about my plans beforehand?

    I'm not the type of person that would sue anyways. I believe most practitioners are truly concerned with helping their patients, even if they come off harsh or uncaring. I also believe if my baby dies, it's God's will and no one has the power to circumvent that.

    So my question is how to approach this meeting in the best possible way? I don't want them to worry about me suing them, but I don't want to get over-treated, under-treated, or treated like garbage because I didn't start out on their turf.

    I want to be smart about my back-up plan, but worry about what they'll think and do.

  11. Also womantowomancbe's post resonated with me. If my baby's breech, I'd prefer to attempt a vaginal delivery, but would like the 'system' on board rather than going behind their backs. Unfortunately, I don't think anywhere is up to doing that. So I'd have to try it at home and transfer in an emergency. Or consent to a CSec that I don't want and don't necessarily think is required. It's a sad thing to me.

  12. It seems to me that OB's get sued BECAUSE they are afraid of it. They treat their patients quite poorly and don't listen to them-when communication breaks down people will take more extreme measures.

    Patients wouldn't expect OB's to be responsible for every outcome if OB's educated and supported their patients better. Instead it's a power dynamic with the OB fighting for control-if you are sole person in control then of course you are responsible for the outcome! If the patient is in control then THEY are responsible for the outcome.

    It makes me wonder about the attitudes of OB's in Canada-they act in much the same way as their American counterparts and yet the way I understand it is that they get sued far less often-perhaps the American attitude LEAD to being sued and not the other way around?

  13. I have followed your blog for some time and find it enlightening. I am a young ob/gyn in practice and a mother; I do not participate in home births. I am not opposed to women who choose to birth at home; I do not feel antagonistic towards home birthing whatsoever. Considering the possibility of malpractice is a part of the reality of providing obstetrical care in America, but it does not define or shape my professional persona, nor my medical decision making. I personally do not feel passionate about the issue of home birthing--but there are many other issues that I feel passionate about: smoking cessation during pregnancy, management of obesity, reliable, safe, affordable contraception, etc. I disagree with some of what's been said in the previous forums. I think that there are a large portion of ob's who are quite humbled by the limits of modern medicine, by our own inadequacies, by the simple fact that bad outcomes are frequently inevitable. I don't think you can boil the complexities of the patient-doctor relationship down to "warm fuzzies;" I think that the issues of trust, respect, and communication are at the heart of delivering quality patient care. I certainly do not feel "God-like" nor that the pursuit of power is the core reason for my personal practice of medicine. I truly feel that my profession is my life's true calling, and I feel inherently obligated to myself to put forth my best each day, for every patient. At the root of what I do everyday, is the health, welfare and well-being of my patients. There are many motivating factors in medicine: financial, lifestyle, prestige...Many, many ob's choose this specialty because of a genuine care and concern for women. I definitely identify myself as "a surgeon" because of the years I spent acquiring surgical training, and the absolute joy that comes from applying those skills to benefit patients. In the event that surgery would is truly necessary, I feel confident that I am offering patients a safe and competent service. I do think that birth has become over-medicalized, over-legalized, and as a result overly surgical. I support your ongoing dialogue and interest.

  14. Anon ob-gyn, thank you so much for both reading the blog and for joining in the conversation on this topic! I am always happy to hear from OBs themselves because, after all, I am just trying to imagine what OBs are thinking and I could very well be misrepresenting them (keeping in mind that it's always a dangerous proposition to try to generalize a whole profession into neat little packages). I am sure that there are many OBs out there who aren't as governed by malpractice concerns as are the ones on the ob-gyn-l archives.

    Anyway, I just wanted to say thanks again and please keep contributing to the conversations on this blog!

  15. Thank you Rixa. I imagine you can kind of see where they are coming from now? I feel bad for Ob Docs and Nurses because they are imprisoned in a sytem that does not work for anyone. I personally am sick to death with worrying if I will be sued. So I quit. There are easier ways to make a living. Perhaps Starbucks needs help?

  16. Rixa,

    Thanks so much for having this conversation here. As CPMs become regulated in more states and families seeking homebirth services increase while our country is deeply embroiled in determining what health care will look like for our country in the future- this is a dialogue necessary for building bridges between institutional and non-institutional care providers.

    I am a homebirth midwife who has the honor of working closely with an OB in a non-binding truly collaborative fashion to offer not only a safety net to my families in case of transport, but to also offer complete care should a complication arise during pregnancy in which families are both served by the Midwives Model, and the Obstetrical Model concurrently. I have a pretty sweet situation. But because there is no clear model for this, and it seems like some days the only thing that my doc and I have in common are bellies under our hands, we have had to approach the situation with a lot of grace and openness over rough patches, or where one thought the other one should know how to handle "X", based on our own training, location of practice, and professional pressures.

    The profession of midwifery has until lately come to the table as if begging crumbs, often with a chip on their shoulder, because of the oppression of the medical model in pursuing a professional agenda that has become blurred with "community based standards" (code for it ain't evidenced based, but it is what is standard to not get sued) Just as we are asking the professionals of the medical model to let go of this outdated mindset that is not in the best interest of optimum health, so we see our own struggles within the midwifery professional community who struggle with outdated notions that midwives and birth are somehow beyond the reach of regulation and professional accountability.

    I believe as you state, and my experience bears out, that many OBs would be fine with working collaboratively if their malpractice insurance would permit it, and it would not run risk to their job. We in the midwifery community just don't get this, see it as personally protectionist, nonsupporting of birthing mothers, disregarding patient autonomy, etc.

    What we forget is that many of us came to midwifery with a passion forged in the flames of previously abusive care, a bent for activism, a solid religious viewpoint that underpins our beliefs about body and spirit- motivators which have a huge and life changing charge to them. While many docs may have entered the field of medicine to make the world a better place so to speak, the world that they are trained through is a bureaucratic paper pushing landscape, with residency having many things in common with brainwashing. Without the passion of a major political, personal, or philosophical belief to bolster them through this time, you can well believe that they just want a nice practice to pay off their student loans. Who can blame them. They'd like to get a decent night sleep, not take on the Goliath of Malpractice Reform and trial attorneys. What is their motivation to do so???

    I think our job, for those of us that consider ourselves maternity care reformers, is to listen to these people as individuals and figure out how to build a personal fire for them that inspires them, calls on all that drove them through the grind of medical school, and practice the finer points of community organizing to be able to draw in many OBs in the Maternity Care Reform Movement.

    For many OBs humming away, as well as OB staff, it is as if we are simply coming along and shouting "YOUR DOING IT WRONG!!!" It feels like a personal attack. The quest is, and I sense you rolling it around in your mind Rixa, is how do we "sell" change to this group of providers in a way that is engaging and system changing.

    Keep the dialogue going!

  17. What always struck me as a major difference between a Midwifery care pregnancy and birth cycle and the obstetrician one was that there just was no true "relationship" with the OB. This is nothing against OBs, even, but to pop in once a month to some doctor's office, deposit your pee, give a blood pressure and be asked HOWS IT GOIN MOM OK BUH BYE compared to having a woman into your home, eating dinner, sharing stories and laughs, perhaps even recipes, tears, fears, blessingways, hopes, dreams...by the time that baby comes, this is a Close Family Friend, and if the proper discussions have been had regarding personal responsibility and true family empowerment have been occuring, the chances that you will sue that midwife are just by nature, very low.

    Now of course, I know that midwives can and have gotten sued. But compare the impersonal, disconnected, power-imbalanced and oftentimes mysterious and even scary environment and relationsip a birthing family has with Whoever's-On-Call, and that seems like a situation of zero informed consent at a time of grave vulnerability and, well, frankly, a scene that is ripe for litigation "afterwards".

    It must be awful for the doctors, and I dont know what to do about it. But I do think that we would be much much better off as a nation/world if Midwifery was assumed for mothers, and only (actual) high risk women would be referred out to OB's (surgeons!).

  18. Housefairy, I think you have struck on a marvelous idea- National Ask Your Doctor to Dinner Week!

    I'm sure that we would hear Dopplers and jaws hitting the floor, and I'd love to hear someone say they were taken up on it, but oh my, just the power in asking- you saw them as human, saw through the mask, they eat! What a paradigm shift.

  19. So much of this has to do with moving maternity care from woman-centered to Big Business. If women aren't in charge and doctors aren't in charge......

    Who's the HELL is in charge?

    Why, that would be the wonderfully Warm and Fuzzy Medical Malpractice Insurance Company who obviously has the best interests of the birthing woman and her family at heart.

    They are not concerned about the emotional ramifications of an unnecessary c-section. They only care about the bottom line. Does it pay for the doctor to cut? Yes, yes it does. It pays big because it DECREASES the chances of a lawsuit. Apply that to any invasive medical procedure that is over-used and under-informed. Add to that the fact that doctors do not just get paid one nice big flat global fee for a delivery. Every procedure makes them money. Sitting by the bedside to labor sit for 24-36 hours? Not a dime. Who sets up this system which basically punishes low intervention, hands on care? You guessed it!

    Taking birth back means moving it away from the system that dictates every baby born as $$$ in the pocket. Not that getting paid isn't important. I don't suddenly expect hospitals and doctors to get all misty eyed and altruistic. But perhaps setting up a system where doctors get paid MORE the more hands on and low intervention they become......yeah. I'm dreaming.

  20. The fear of being sued is obviously very real.(1) Is the fear justified and based on facts? Not exactly.

    The highest payouts are being awarded to women who were actually victims of malpractice and not to what some refer to as greedy people looking to exploit the system to profit from a tragedy.(2) That would mean that the legal system is actually working at least somewhat effectively and benefiting the proper parties. So if doctors are not indeed being sued left and right for birth injuries that are beyond their control, then of what are they actually afraid? The courts do a good job of throwing out so-called frivolous cases and many victims of malpractice are never compensated at all.(3)

    There is a great aversion to vaginal birth taking its course. Blaming lawyers and “the system” is a way to rationalize preserving the status quo and moving yet again toward a one-size-fits-all standardized American birth. We’ve been through this before historically. Now we’re doing it again with cesareans and it’s sickening.

    Another thing to take into account is that 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.(4)

    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.

    Like most people, I don’t really have any real answers but I have loads of questions. None of this happens in a bubble and it’s going to take a really concerted interdisciplinary effort to gain a clearer picture.

    1. ACOG 2009: Liability Fears May Be Linked to Rise in Cesarean Rates (May 2009)

    2. Reducing Obstetric Litigation Through Alterations in Practice Patterns (Dec 2008)

    3. Medical Malpractice: Impact of the Crisis and Effect of State Tort Reforms (May 2006)

    4. MEDICAL MALPRACTICE INSURANCE: Multiple Factors Have Contributed to Increased Premium Rates (June 2003)

  21. Thank you so much. GREAT POST!!!

  22. Jill,

    I link a lot to your blog, and think you offer a fantastic voice that often shines a laser crisp analysis of medical magical thinking. However on this one I have to disagree.

    Jill--Unnecesarean said...

    "The fear of being sued is obviously very real.(1) Is the fear justified and based on facts?"

    This is where I am going to disagree. The very thing that you are referencing is using "community standards of care". A Canadian take- http://www.medlit.info/guests/mmpcanadian/medlit.htm

    As well, we are not talking about greedy people, but deeply hurt people who are being sold resolution and closure by ambulance chasing attorneys. As the daughter of an attorney, I understands that particular mindset and the justifications there.

    Because of these beliefs, my community experienced the loss of the only freestanding birth center in my state that catered to non Amish, "English" folk. I'm providing some of the archived text. In it's reading, it clearly shows what the "community standard" is. Is this a case counted as victims truly of malpractice? I don't think so, but I bet your source does.

    Couple gets $1 million in baby death case
    Cincinnati Enquirer - Cincinnati, Ohio
    Author: Kimball Perry
    Date: Apr 15, 2009

    An East Price Hill couple whose baby died after their midwife agency told them not to worry when the pregnancy was overdue received just over $1 million when they settled their lawsuit Tuesday.

    Robert Kottmyer and Marlena Kottmyer chose to use Midwives Care, a Northside pregnancy care agency, when Marlena Kottmyer became pregnant in 2000. The birth was supposed to be about April 25, 2001. When that date came and went without a birth, she went to an obstetrician who suggested her delivery be induced soon.

    The Kottmyers' suit, though, accused Midwives - and its employees Jacquelyn Gruer and Leah Terhune - of advising Mrs. Kottmyer "not to deliver her baby at that time," the suit noted, and told her to allow her pregnancy to "continue past the usual gestation period of 40 weeks."

    The Kottmyers took that advice and continued the pregnancy.

    Weeks later, on May 14, 2001, Midwives told Mrs. Kottmyer to go to a hospital so labor could be stimulated.

    The next day, Arianna Marie Kottmyer was born at Bethesda North Hospital. She had what the suit called "severe brain damage and neurological damages" that were responsible for her death on March 25, 2002.

    The Kottmyers sued, accusing Midwives - now known as Birth & Beyond: Advocates for Woman Centered Healthcare - and its employees of negligence that caused the child's death and the parents' pain, suffering, loss, medical and other expenses. .


    Because I do connect with institutional birth providers who have malpractice insurance, I can say with a great deal of confidence and sadness, that because out culture has bought into the medical model's, and trail attorneys, promise of perfect births, and because the loss of a baby is so sensational in the media, and pulls at heartstrings so strongly, in the obstetrical field, there are a number of lawsuits that are either settled, or go to trial because of the confusion that "community standards" are not "evidenced based practice" and often contrary. I have seen similar situations where providers who DO provide evidenced based care settle, because "Community Standards" trump evidence, and they just want to move on with their life and practice. Because of this, and knowing that your source is relying on "community based standards". I can't support your position on this particular matter.

    I hope that I have been able to provide you with some other things to consider.

    please see my blog for more on this- http://theskepticalmidwife.squarespace.com/

  23. I think people who have birth injured children have high medical bills that need to be payed. Lawyers aggressively advertise to them and appeal to their financial concerns. Many people are not adequately insured to cover major lifelong medical care, and there is not the security of universal health care in this country, so health care bills can become quite exorbitant. OBs handle all of the high risk cases to begin with, and are transferred all of the cases that become high risk. OBs also practice more aggressively and use more medical and surgical procedures that increase the risk of injury - which ironically they do to protect themselves in a lawsuit, but this may injure more children and invite more lawsuits. It makes sense to me that OBs would see most of the birth injured children, and get sued much more often then a family practice doctor or a midwife. It seems to me that this whole issue may have less to do with the OB's bedside manner, and more to do with parents who have no other way to pay their medical bills.

  24. bombe cerise,

    I have to present another side/ ask a question.

    I KNOW the midwives were found to have malpracticed by a COURT (not that a court really understand the medicine or path of normal birth).

    However, I have to wonder if this baby's death was caused BY the induction, as opposed to by the waiting. Pit and other induction agents are known to stress babies and cause them oxygen deprivation.

    I don't know this case or situation, but am sad that it doesn't seem this angle was adequately explored (or I am missing some info, which is likely).

    Regrets to the family.

  25. bombe cerise,

    Hi! I'm a little confused by your comment. Maybe you could clarify for me?

    You quoted this: "The fear of being sued is obviously very real.(1) Is the fear justified and based on facts?"

    ...and said you don't agree. With which part? Are medical professionals not afraid of being sued? They self-report that they are.

    The other part was a question--are the fear of litigation and rising malpractice insurance rates based on fact?

    My point wasn't that there are ZERO unfair or frivolous lawsuits and that care providers are NEVER unfairly blamed. The point was that there are many, many other factors that contribute to both malpractice insurance rates, a medical culture of fear and personally justifying the aggressive use of defensive medicine on one’s patients.

    I mostly just have a lot of questions on the subject. I do gather from everything I’ve read to date that the fear of being sued is real, the threat of actually being sued isn’t as high as the public or medical professionals themselves suspect and that the culture of fear and desire to intervene in childbirth at unnecessarily high rates actually predated the current so-called frivolous lawsuit culture.

    It’s understandable to want to protect oneself as a care provider against trauma. The trauma of a person dying in one’s care is terrible. The trauma of being sued for malpractice is so awful that it is reported that ten percent of doctors being sued contemplate suicide. One of my many questions is whether sensationalism and highly emotional reactions have led to the creation of medical mythology related to litigation that is based more on the emotion of fear than on actual scientifically documented risk.

    Analyzing perceived risk versus actual risk is always the tricky part.


  26. I keep coming back to this discussion- it weighs heavily in my day to day life with the supportive OB who provides parallel care, and is coming up in so many ways in the larger world.

    To Anon who asked if the induction was responsible for the outcome-

    I do not know, and sadly, it does not matter in this context. This is what I mean- that courts, our shared cultural perceptions, even journalism reflect the bias and acceptance of "community based standards" which currently has legal precedence for being the acceptable standard of care in a court and discipline in professional board hearings. These standards are often not evidenced based. Hence the problem- how do maternity care providers escape this? That said, OB's created it along with trial attorneys, promising God like competency, perfect births, perfect babies, removing patients from the decision making team, and creating malpractice corporations that are now eating them- add in the "somebody's responsible!" mindset from the attorneys and we have a disaster.


    To clarify- You asked me if I thought the perception of fear of suit from maternity providers justified?

    This I say yes to. In my first reply, I simply focused on their fear of wonky "community based standards" which OBs feel will trump evidenced based practice in a suit. ACOG reported in 2006 that about 80% of OBs has suits brought against them. http://www.micra.org/womens-health/docs/acog_news_release_womens_atc.pdf

    However, in your reply you articulated the other monster at the rocks that maternity care providers are hamstrung by- rising malpractice rates that have nothing to do with payouts, but with stock losses from the spring 2001 stock market crash. The most drastic rises occurring right after this. http://forums.obgyn.net/ob-gyn-l/OBGYNL.0507/0041.html

    Scylla and Charybdis truly. Because malpractice rates rose over 120% from 2000-2004, the most drastic rises were seen for OBs driving many out of practice. The last thing that OBs want to do who keep paying through the nose is practice anything other than "community based standards", because even if that is NOT what patients want or is evidenced based. If they get sued evidence based practice often won't hold up in court. We are seeing a slow change with this as evidenced by the largest medical malpractice payout in my state to date-


    I think Rixa posted about it, and it is a small triumph against "pit to distress", but change to evidenced based care as the legal standard is So.Frickin.Slow.

    I'm like you- with many, many questions. My biggest one still- how do we find out what will mobilize OBs to work with us to slay the two beasts that they have unwittingly created. As some one wiser that me posited- “How do we make change happen when providers and staff feel threatened by the very change that would support what they ultimately want...not to get sued!”

  27. Great information. After presenting my birth plan to my OB at 32 weeks and being told I was ridiculous, I went back to my primary OB and we discussed the issues at hand. I eventually thanked him for his time and told him I'd be leaving his practice. My exact words were, "I am not comfortable with you making decisions about my care based on your fear of litigation." He understood and we parted ways respectfully.

    Have you read Marsden Wagner's "Born in the USA: How a Broken Maternity System Must Be Fixed to Put Women and Children First"? It's a great read with excellent insight to the OB mentality (Dr Wagner is an American OB)... I'd be interested in seeing your review of his book.

  28. I strongly believe that health care is a human RIGHT, not a privilege, but I think universal health care would help a LOT in this situation. It's not just that patients are suing doctors because the doctors did something wrong, but I think a huge factor in the decision to sue is that families have no way to pay for the care that their loved one requires, without getting a huge settlement and pay-out.

    If your child, God forbid, is born with cerebral palsy or some such, that's a huge life-long expense. You almost have to sue just to cover the child's costs of care. If there were universal health care, you wouldn't have to sue. I think that change, right there, just universal healthcare, will have a major and positive effect on doctors being sued for malpractice. I'm surprised all OBs aren't strongly pro-universal-healthcare just because of that.


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