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Medical Professional Liability and the Delivery of Obstetrical Care VOLUME 11 An interdisciplinary Review Victoria P. Rostow and Roger J. Bulger, editors Committee to Study Medical Professional Liability and the Delivery of Obstetrical Care Division of Health Promotion and Disease Prevention INSTITUTE OF MEDICINE NATIONAL ACADEMY PRESS Washington, D.C. 1989

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NATIONAL ACADEMY PRESS 2101 Constitution Avenue, NW Washington, DC 20418 NOTICE: The papers in this volume were prepared as background material for the Institute of Medicine's Committee to Study Medical Professional Liability and the Deliv- ery of Obstetrical Care. Most of the papers were presented at an interdisciplinary sympo- sium held in Washington, D.C., on June 20, 1988. Support for the symposium and publica- tion of this volume as a compendium to the committee's report was provided by the U.S. Department of Health and Human Services (Contract No. 282-88-0039). The Institute of Medicine was chartered in 1970 by the National Academy of Sciences to enlist distinguished members of the appropriate professions in the examination of policy matters pertaining to the health of the public. In this, the Institute acts under both the Academy's 1863 congressional charter responsibility to be an adviser to the federal government and its own initiative in identifying issues of medical care, research, and education. This project was supported by the Andrew W. Mellon Foundation contribution to the Institute of Medicine's (IOM) independent funds, the W.K. Kellogg Foundation contribu- tion to IOM dissemination funds, the March of Dimes Birth Defects Foundation, and The Harris Foundation. The U.S. Department of Health and Human Services provided support for an interdisciplinary symposium and publication of background papers as the compen- dium volume to this report (Contract no. 282-88-0039). Library of Congress Cataloging-in-Publication Data (Revised for vol. II) Institute of Medicine (U.S.). Committee to Study Medical Professional Liability and the Delivery of Obstetrical Care. Medical professional liability and the delivery of obstetrical care. Vol. II contains background papers presented at an interdisciplinary symposium held in Washington, D.C., on June 20, 1988. Bibliography: v. 1, p. Includes indexes. Contents: v. II. [without special titled. II. An interdisciplinary review/Victoria P. Rostow and Roger J. Bulger, editors. 1. ObstetriciansMalpractice- United States. 2. Insurance, Physicians' liability United States. I. Rostow, Victoria P. II. Bulger, Roger J., 1933- . III. Title. [DNLM: 1. Insurance, Liability United States. 2. Malpracticc- United States. 3. Obstetrics United States. WP 33 AA1 I5m] KF2910.G943157 1989 346.70303'32 ISBN 0-309-03982-7 (v. I) 347.306332 ISBN 0-309-03986-X (v. II) Copyright ~ 1989 by the National Academy of Sciences Printed in the United States of America 89-12390

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COMMITTEE TO STUDY MEDICAL PROFESSIONAL LIABILITY AND THE DELIVERY OF OBSTETRICAL CARE ROGER J. Bu~GER (Chairman) President, Association of Academic Health Centers, Washington, D.C. KENNETH S. ABRAHAM, Professor of Law, School of Law, University of Virginia, Charlottesville LINDA H. AIKEN, Trustee Professor of Nursing and Professor of Sociology, University of Pennsylvania, Philadelphia LoNNiE R. BRisTow, Specialist in Internal Medicine, Private Practice, San Pablo, California ARTHUR L. HERBST, Joseph Bolivar DeLee Distinguished Service Professor and Chairman, Department of Obstetrics and Gynecology, Pritzker School of Medicine, University of Chicago ANGELA RODDEY HOLDER, Counsel for Medicolegal Affairs, Yale-New Haven Hospital and Yale Medical School, and Clinical Professor of Pediatrics and Law, Yale Medical School, New Haven, Connecticut REGINA P. LEDERMAN, Professor and Associate Dean for Academic Affairs, University of Texas, Galveston DONALD N. MEDEARIS, ~Jr., Charles Wilder Professor of Pediatrics, Harvard Medical School, Cambridge, Massachusetts, and Chief, Children's Service, Massachusetts General Hospital, Boston SAM A. Nixon, Director, Division of Continuing Education, The University of Texas Health Science Center, and Assistant Dean, Continuing Education, The University of Texas Medical School, Houston EDMUND D. PELLEGRINO, John Carroll Professor of Medicine and Medical Humanities and Director, Kennedy Institute on Ethics, Georgetown University, Washington, D.C. JAMES R. POSNER, Executive Vice-President, Voluntary Hospitals of America, Incorporated, New York City ANNE H. SCITOVSKY, Chief, Health Economics Division, Palo Alto Medical Research Foundation, and Teacher, Institute for Health Policy Studies, School of Medicine, University of California, San Francisco BARBARA H. STARFIELD, Associate Professor, Pediatrics, and Professor, Health Care Organization, The Johns Hopkins University, Baltimore, Maryland WALTER J. WAD~iNGToN, James Madison Professor, University of Virginia School of Law, and Professor, Legal Medicine, University of Virginia School of Medicine, Charlottesville ~. 111

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Stag VERA ~ ~S~, SO ~~ Committee ~ Study Medka1 ho~ssions1 Li~iLty and the Delivery of Obstetrical Care ENRI9OE~ C. BOND) Qua ~~ Insht~e ~ Medicine BARON OSTE~IS) gaff Di~~ Division of Health homoti~ and Disease Retention BOBBIN ~ ALEXANDER) ~~= COO~F BLAIR POEM Char

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LIST OF CONTRIBUTORS LoRi ANDREWS, J.D., Research Fellow, American Bar Foundation, and Senior Scholar, Center for Clinical Medical Ethics, University of Chicago, Chicago OTIS R. BOWEN, M.D., Former Secretary, U.S. Department of Health and Human Services, Washington, D.C. ROGER J. BULGER, M.D., Chairman, Committee to Study Medical Professional Liability and the Delivery of Obstetrical Care, Institute of Medicine, and President, Association of Academic Health Centers, Washington, D.C. SARAH D. COHN, C.N.M., J.D., Associate Counsel, Medicolegal Affairs, Yale-New Haven Hospital and Yale University, New Haven, Connecticut STEPHEN DANiE~s, Ph.D., Research Fellow, American Bar Foundation, Chicago RicHARD A. EPSTEIN, LL.B., James Parker Hall Professor of Law, University of Chicago, and Editor, Journal of Legal Studies, Chicago ELIZABETH H. ESTY, J.D., Associate, Sidley and Austin, Washington, D.C. CYNTHIA FADER, B.S.N., Nurse, Labor and Delivery and Master's Candidate, Nurse-Midwifery, University of Pennsylvania, Philadelphia JAMES A. HENDERSON, Jr., Frank B. Ingersoll Professor of Law, Cornell Law School, Ithaca, New York NEIL A. Ho~TzMAN, M.D., M.P.H., Professor, Department of Pediatrics, The Johns Hopkins University, Baltimore DANA HUGHES, M.P.H., M.S., Senior Health Specialist, Children's Defense Fund, Washington, D.C. DEBORAH LEw~s-IDEMA, M.Sc., Consultant, Health Policy and Planning, Washington, D.C. W. HENSON MOORE, Partner, Sutherland, Asbill and Brennan, Washington, D.C. CARTER G. PHILLIPS, ~J.D., Partner, Sidley and Austin, Washington, D.C. ARNo~D RELMAN, M.D., Editor-in-Chief, The New England Journal of Medicine, and Professor of Medicine, Harvard Medical School, Cambridge, Massachusetts SARA ROSENBAUM, J.D., Director, Child Health Division, The Children's Defense Fund, Washington, D.C. VICTORIA P. ROSTOW, M.A., ~J.D., Study Director, Committee to Study Medical Professional Liability and the Delivery of Obstetrical Care, Institute of Medicine, Washington, D.C. v

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BENJAMIN P. SACHS, M.D., M.P.H., Associate Professor, Obstetrics and Gynecology, Harvard Medical School, and Associate Professor of Obstetrics and Gynecology, Harvard School of Public Health, Cambridge, Massachusetts DAVID SMITH, J.D., Deputy Director, Division of Special Populations and Program Development, U.S. Department of Health and Human Services, Washington, D.C. STEPHEN B. THACKER, M.D., M.Sc., Assistant Director for Science, Center for Environmental Health and Injury Control, Centers for Disease Control, AtIanta V1

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Contents Preface Victoria P. Rostow and Roger A. Bulger Keynote Address Otis R. Bowen e ~ e - e e e e e e e e e THE MEDICAL BACKGROUND The Impact of Technology Assessment and Medical Malpractice on the Diffusion of Medical Technologies: The Case of Electronic Few Monitoring Stephen B. Thinker. . . . . . e e e Is the Rising Rate of Cesarean Sections a Result of More Defensive Medicine? Benjamin P. Sachs . . . . . . . . . . . . . . . . . . . . Medical Professional Liability in Screening for Genetic Disorders and Birth Defects Neil A. Holtzman ..................... e V11 1X 1 ......... 9 ..... 27 ..... 41

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Preface in October 1987 the Institute of Med- icine (IOM) of the National Academy of Sciences appointed a distin- guished interdisciplinary committee to evaluate the data relating to the effects of medical professional liability issues on access to and delivery of obstetrical care. Unlike many TOM reports that are undertaken at the request of Congress or of a government agency, this study was under- taken by the TOM on its own initiative following an inquiry by the American Academy of Pediatrics in 1984. The American Academy of Pediatrics, along with several other groups, believed that more attention to professional liability issues was urgently required. In addition, physi- cians, hospitals, insurers, and patients were becoming more and more vocal in their pleas for some solution to the problem of increasing numbers of claims, rising costs of jury verdicts and settlements, and higher medical malpractice insurance premiums. The IOM responded to this call. What became known in many quarters as "the medical malpractice crisis" first came into focus in the mid-1970s. At that time, a series of studies reported that increasing numbers of medical malpractice suits, with ever higher awards, were prompting increases in medical malprac- tice insurance premiums and in some instances making medical mal- practice insurance unavailable. At this same time, scholars from a variety of fields turned their attention to these issues, and several groups who were stakeholders in the medical malpractice controversy studied the problem and issued reports. 1X

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X PREFACE The fruits of this first phase of both scholarship and public policy debate on medical malpractice issues furnished the baseline for the TOM committee's data-gathering activities. By the time the TOM committee was in place in 1987, some facts had been established. First, research had confirmed that medical malpractice claims frequency and severity had increased throughout the decade. Second, 49 of 50 states had en- acted major tort reforms since the mid-1970s. Consistent with this legislative activity, much of the literature produced during this period was concerned with the debate over reform of the tort system. Indeed, the TOM's own contribution to this debate, Beyond Malprc~ct~ce: Compen- sat~on for Medical injuries, which was published in 1978, developed a set of six criteria for evaluating tort reforms. By 1987, however, it was clear that whatever momentum had been achieved in the last decade had been lost and that the debate on medical malpractice issues and reforms was at a standstill. The debate had become narrowly focused on tort reform. To be sure, a few scholars were advancing theoretical proposals setting forth alternatives to the tort system for compensating victims of injuries that occurred from medical malpractice. These alternative systems were debated in scholarly jour- nals, but there had been little practical experience with them. Accor- dingly, in 1987 almost no data had been generated that would assist the TOM committeeor any other groupto evaluate the electiveness of these proposals for imposing alternative regimes to resolve medical malpractice claims. Moreover, some facts had changed in the decade since professional liability-related ills were first diagnosed as a problem for the American health care delivery system. By 1987 there was a new media focus on reports of obstetricians, family physicians, and nurse midwives who were abandoning obstetrical practice and thereby leaving certain seg- ments of the population without adequate care. Yet although many individuals and groups readily accepted that professional liability is- sues posed a problem for the delivery of obstetrical care in the United States, little was known about the precise dimensions of the problem in practical terms or what to do about it. Indeed, the title for one of the General Accounting Off~ce's 1986 reports to Congress on medical mal- practice issues perhaps best summarizes the state of the policy debate at this time: Medical Malprcletice: No Agreement on the Problems or Solu- t~ons (19861. It was against this background that the IOM committee began its work. Early in its deliberations, the committee decided to focus its inquiry on access to and delivery of obstetrical care and to analyze various proposed solutions to the medical professional liability problem from the perspective of obstetrics, the field in which the problem was clearly most

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PREFACE Xi severe. Nationwide, obstetrics claims represent approximately 10 per- cent of all medical malpractice claims and nearly one-half of all indem- nity payments. The committee also hoped that the case of obstetrics would prove an instructive vehicle for a study of the problems posed by professional liability issues for the health care system as a whole. The committee quickly concluded that two things were required to move the public policy debate on the effects of medical professional liability in obstetrics toward a productive resolution. First, it believed that a consensus regarding the practical dimensions of the problem itself must be achieved. Second, it recognized that various options for solving the problem must be identified and assessed. The committee interpreted its mandate as the fulfillment of these two objectives. From the outset the committee believed that its highly interdisciplin- ary composition was its major strength and its comparative advantage in relation to other individuals, groups, and organizations that have examined the question of professional liability in obstetrics. Accor- dingly, in approaching its task the committee tried to be as far-reaching as possible and to direct its efforts across whatever fields and disciplines were relevant to the problem. As part of its data collection effort, the committee held an inter- disciplinary symposium on June 20, 1988. The symposium, which was funded by the U.S. Department of Health and Human Services, featured fourteen noted scholars who were asked by the committee to turn their attention to certain problems related to the impact of professional lia- bility issues on access to obstetrical care and on the way obstetrical care is delivered in the United States. In addition, four eminent legal scholars were asked to evaluate several recent legislative efforts to address the problems caused by professional liability issues in obstetrics and to set forth their ideas for resolving these questions. Otis R. Bowen, who was then secretary of the U.S. Department of Health and Human Services, gave the keynote address. One of the committee's chief concerns was whether medical profes- sional liability issues are affecting access to maternity care in the United States. The committee was particularly concerned with the effects of these issues on publicly financed obstetrical care because the women receiving such care are frequently both high-risk patients and underserved by the health care system. Because community health centers are such an important source of obstetrical care for low-income women, the committee commissioned a survey of the effects of medical professional liability issues on the deliv- ery of care in these centers. The results of that survey of a random sample of 208 Community and Migrant Health Center directors during April and May 1988 are presented in a paper by Dana Hughes, Sara

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xli PREFACE Rosenbaum, David Smith, and Cynthia Fader. The vast majority of these centers reported that medical professional liability concerns are either directly or indirectly compromising their ability to provide ma- ternity care to poor women. Yet community health centers represent only a small portion of the health care furnished to low-income women. The committee was equally concerned with women whose care is financed by Medicaid and with the problems of women who live in rural areas. The committee commis- sioned studies of both ofthese issues by Debra Lewis-Idema. The results of her investigation are startling. In her evaluation of approximately 40 state surveys, Ms. Lewis-Idema found that physicians are reporting that because of professional liability concerns they are curtailing their prac- tices, limiting their Medicaid participation, and avoiding "high risk" patients who are very often socioeconomically disadvantaged women, poor women, and Medicaid women. She also found that medical profes- sional liability concerns are creating significant access problems in rural areas, particularly among family physicians who provide two- thirds of the obstetrical care in rural areas. The number of births attended by nurse-midwives in the United States, a provider group that is especially important to low-income and rural women, has increased substantially in recent years. The commit- tee was troubled by reports that professional liability issuesthe high cost and unavailability of medical malpractice insurance were impair- ing the ability of nurse-midwives to deliver obstetrical care. Accor- dingly, it asked Sarah D. Cohn to address the question of the effects of medical professional liability issues on the delivery of obstetrical care by nurse-midwives. Her study makes it clear that the continued ability of nurse-midwives to furnish obstetrical care depends crucially on resolv- ing the threat that medical professional liability issues pose for this group of obstetrical providers. The question of how medical professional liability issues are affecting the actual practice of obstetrics also concerned the committee. The use of the electronic fetal monitor, the increase in cesarean section deliveries, and the development of technologies to screen for genetic disorders and birth defects offered instructive case studies to explore this question. Stephen B. Thacker presents a thorough study of electronic fetal mon- itoring, a technology whose use is believed to be at least partially driven by professional liability concerns. Similarly, many have alleged that professional liability concerns are driving the increase in the cesarean section rate, which has increased from 5 percent in the late 1960s to more than 25 percent in many urban areas today. Benjamin P. Sachs presents a scholarly examination of the many medical, legal, epidem- iological, and social issues relevant to this growing practice. Neil A.

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- PREFACE X111 Holtzman examines how professional liability issues are shaping the development of technology for screening genetic disorders and birth defects and the legal issues that arise in applying these technologies. The most significant change in the practice of obstetrics, however, is also the most subtle and most difficult to support with data: the profound alteration in the physician-patient relationship that has been wrought by professional liability issues and the implications of this shift for patient care. These questions were addressed for the committee by Arnold Relman. Although several studies, such as those undertaken by the General Accounting Ounce, have evaluated closed medical malpractice insur- ance claims, the committee believed that it was also important to study the subset of claims that actually proceed to court. As Stephen Daniels and Lori Andrews explain in their analysis of 24,625 civil verdicts from state trial courts of general jurisdiction in 46 counties in 11 states for the years 1981 to 1985: "The importance of jury verdicts lies not in their numbers, but in their symbolic value as 'transmitters of signals rather than as deciders of cases."' Finally, four noted legal scholars assessed some major proposals to reform the legal system that are particularly relevant to the problems posed by professional liability issues in obstetrics. Although the com- mittee studied a wide range of possible solutions, the limits of time permitted at-length discussion of only four of these at the symposium: contractual solutions, administrative systems to adjudicate medical malpractice claims, limited no-fault insurance schemes for certain ob- stetrical injuries (a variant of what are known as Designated Compens- able Events, or DCE, systems), and a proposal for a system of economic damage guarantees. Various commentators have suggested replacing tort remedies for medical malpractice injuries with ex ante contractual agreements be- tween physicians and patients that would set forth mutually agreeable processes to determine compensation should an injury occur. The com- mittee, however, found that contractual solutions to medical profes- sional liability issues are commonly misunderstood. Accordingly, it asked Richard A. Epstein to evaluate this approach and assess its appropriateness for obstetrical liability issues. In 1987 the American Medical Association (AMA) unveiled an ambi- tious proposal to replace the civil justice system with a fault-based administrative system for resolving medical malpractice claims. At the request of the committee, Carter G. Phillips and Elizabeth H. E sty analyzed the implications of the AMA model from the perspective of obstetrical liability issues. In the past two years both Virginia and Florida have enacted statutes that provide no-fault compensation to

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XIV PREFACE certain neurologically impaired infants. These legislative remedies are designed to take these claimswhich account for a significant propor- tion of the indemnity payments in most statesout of the civil justice system. The committee asked James A. Henderson, Jr. to evaluate this approach. Finally, W. Henson Moore, who introduced federal legislation in the 89th Congress to implement a variant of the economic damages guarantee system, discussed a variety of legislative options to resolve the professional liability problem in obstetrics. The symposium attracted national attention. It was covered by more than a dozen newspapers, and segments were broadcast by two televi- sion networks. Not only were the media interested, but there was con- cern among legislators as well. On June 21, 1988, Roger J. Bulger and Victoria P. Rostow reported on the committee's preliminary findings to the U.S. Congress's Joint Economic Committee. We hope that this companion volume to the committee's report will prove valuable to scholars, policy analysts, legislators, and legislative analysts, as well as to students of law, medicine, public policy, and public health, as they endeavor to understand and resolve the problems posed by medical professional liability issues to the delivery of health care in America. VICTORIA P. Rose ROGER J. BULGER

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Medical Professional Liability and the Delivery of Obstetrical Care An Interdisciplinary Review

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