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Medical Professional Liability anti the Delivery of Obstetrical Care VOLUME I 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 project that is the subject of this report was approved by the Governing Board of the National Research Council, whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Insti- tute of Medicine. The members of the committee responsible for the report were chosen for their special competences and with regard for appropriate balance. This report has been reviewed by a group other than the authors according to the procedures approved by a Report Review Committee consisting of members of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. 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 an Andrew W. Mellon Foundation contribution to the Institute of Medicine's (IOM) independent funds, a W. K. Kellogg Foundation contribution 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 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 I/Committee to Study Medical Professional Liability and the Delivery of Obstetrical Care, Division of Health Promotion and Disease Prevention, Institute of Medicine. p. cm. Bibliography: p. Includes index. ISBN 0-309-03982-7. 1. Obstetricians Malpractice United States. 2. Insurance, Physicians' liability United States. I. Title. [DNLM: 1. Insurance, Liability United States. 2. Malpractice United States. 3. Obstetrics- United States. WP 33 AA1 I5m] KF2910.G943I57 1989 346.7303'32 dc20 [347.306332] DNLM/DLC for Library of Congress Copyright (D 1989 by the National Academy of Sciences Printed in the United States of America 89-12390 CIP

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COMMITTEE TO STUDY MEDICAL PROFESSIONAL LIABILITY AND THE DELIVERY OF OBSTETRICAL CARE ROGER d. BULGER (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 LONNTE 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, Texas 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. STARFIEI.D, Associate Professor, Pediatrics, and Professor, Health Care Organization, The Johns Hopkins University, Baltimore, Maryland WALTERS. WADLING~N, 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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Study Staff V~cToRiA P. RO STOW, Study Director ENRiQuETA C. BOND, Executive Officer, Institute of Medicine MARIAN OSTERWEIS, Acting Director, Division of Health Promotion and Disease Prevention BEAIR POTTER, Editor WALLACE K. WATERFALL, Editor, Institute of Medicine HELEN SCHINDLER, Administrative Secretary, Executive Office LAURIE BETH PEARLMAN, Intern Commissioned Papers Lord B. ANDREWS, Research Fellow, American Bar Foundation, and Senior Scholar, Center for Clinical Medical Ethics, University of Chicago OTIS R. BOWEN, Former Secretary, Department of Health and Human Services, Washington, D.C. SARAH D. COHN, Associate Counsel, Medicolegal Affairs, Yale-New Haven Hospital and Yale University, New Haven, Connecticut STEPHEN DANiE~s, Research Fellow, American Bar Foundation, Chicago, Illinois RicHARD A. EPSTEIN, dames Parker Hall Professor of Law, University of Chicago, and Editor, Journal of Legal Studies, Chicago, Illinois EtizAsETH H. ESTY, Associate, Sidley and Austin, Washington, D.C. CYNTHIA FADER, Nurse, Labor and Delivery, and Master's Candidate, Nurse-Midwifery, University of Pennsylvania, Philadelphia MARIE HACKBARTH, Former Analyst, Lewin/ICF, Washington, D.C. JAMEs A. HENDERSON, Frank B. Ingersoll Professor of Law, Cornell Law School, Ithaca, New York NEIL T. HotTzMAN, Professor, Department of Pediatrics, The Johns Hopkins University, Baltimore, Maryland DANA C. HUGHES, Senior Health Specialist, Children's Defense Fund, Washington, D.C. DEBORAH LEWIS-IDEMA, Consultant, Health Policy and Planning, Washington, D.C. LoRRAiNE V. KLERMAN, Professor of Public Health, Department of Epidemiology and Public Health, School of Medicine, Yale University, New Haven, Connecticut CAROL C. KoRENsRar, Research Specialist, Center for Population and Reproductive Health Policy, Institute of Health Policy Studies, University of California, San Francisco 1V

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W. HENSON MOORE, Partner, Sutherland, Asbill and Brennan, Washington, D.C. JACK NEEDLEMAN, Vice-President, Lewin/ICF, Washington, D.C. CARTER G. PHILLIPS, Partner, Sidley and Austin, Washington, D.C. ARNOLD S. RELMAN, Editor-in-Chief, The New England Journal of Medicine, and Professor of Medicine, Harvard Medical School, Cambridge, Massachusetts SARA ROSENBAUM, Director, Child Health Division, Children's Defense Fund, Washington, D.C. BENJAMIN P. SACHS, Associate Professor, Obstetrics and Gynecology, Harvard Medical School and Harvard School of Public Health, Cambridge, Massachusetts SARAH H. SCHOLLE, Student, Department of Epidemiology and Public Health, School of Medicine, Yale University, New Haven, Connecticut DAVID R. SMITH, Deputy Division Director, Division of Special Populations and Program Development, Department of Health and Human Services, Washington, D.C. STEPHEN B. THACKER, Assistant Director for Science, Center for Environmental Health and Injury Control, Centers for Disease Control, Atlanta, Georgia Consultants SANDRA KRAMER, General Counsel, The Medical Society of Virginia, Richmond ADAM YARMOLINSKY, Provost, The University of Maryland, Baltimore County v

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Chairman's Preface rid l he topic of medical professional lia- bility has been of great concern to the Institute of Medicine (IOM) for more than a decade. In 1975 the TOM was poised to make its own examination of what then was called a "crisis" in medical care brought about by medical malpractice insurance difficulties. But events were outracing the effort; in particular, a number of state legislatures were moving to ease the burden of lawsuits and thereby hold insurance premiums in check. The focus of the 1978 TOM study became, as its report title stated, Beyond Malprc~ctwe: Compensation for Me~zeal Inju- rzes. Nearly ten years later the TOM was approached by the American Academy of Pediatrics to examine a different part of the medical profes- sional liability spectrum: whether access to health care for infants and children was being compromised. The TOM conducted an extensive evaluation of the proposal, including a canvass of local and state legisla- tors and representatives of special interests involved in matters of professional liability. From this examination it became obvious that the current liability situation, apparently acute even after a decade of prodigious efforts to reform tort law, merited a closer look. Many studies had charted claims frequency and severity, rising insur- ance premiums, and other possible causes of the problem, but little scholarly notice had been taken of the effects of the problem on the delivery of care or of the policy implications of these findings. The TOM believed that it was important to make an extensive appraisal of exist- ing data on medical professional liability available to policymakers. vii

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VIii PREFACE To conduct this study, the IOM assembled an interdisciplinary com- mittee of 15 people with expertise in obstetrics, pediatrics, family and general medicine, diverse areas of law, medical ethics, health services research, insurance, economics, nursing, and public policy. Consistent with usual IOM practice, these persons were not appointed as "represen- tatives" but rather as distinguished experts who were familiar with the views of diverse constituencies yet not beholden to them. For this reason no specific representative of any professional association, trade associa- tion, or advocacy group served on this committee. The committee made a concerted effort to take the views of these parties into account, while at the same time consistently and repeatedly reminding itself that its purpose was to serve the public interest and the concerns of patients. Originally, mindful that other studies were examining medical mal- practice issues and the tort system more broadly, the TOM charged this committee with examining the effects of medical professional liability on the delivery of maternal and child health care. However, early in its deliberations the committee decided to narrow its scope even further, focusing exclusively on the effects of medical professional liability on delivery of and access to obstetrical care. There were several reasons for this. First, the committee was committed to investigating how professio- nal liability concerns are changing patterns of health care delivery and affecting access to care. Preliminary evidence available to the commit- tee indicated that obstetrical providers, compared with colleagues in most other specialties, appeared to be affected disproportionately. Sec- ond, the committee was of the opinion that in the child health arena product liability issues (related primarily to vaccine injuries) over- shadow professional liability issues to such an extent that it did not seem appropriate to go beyond obstetrics in this study. Finally, the committee believed from the beginning that the issues posed by profes- sional liability in obstetrics in some ways could be representative of the issues posed by professional liability concerns to the health care system as a whole. By analyzing this one subsection ofthe health care system in detail, the committee hoped to make a contribution to the understand- ing of the overall problem, although the reader will note that care was taken to restrict recommendations to the obstetrical area. To pursue its task, the committee commissioned more than 20 papers by distinguished experts in various fields, commissioned 3 surveys to gather new data, and reviewed more than 50 surveys bearing on the medical malpractice problem in obstetrics. In addition, it held an inter- disciplinary research symposium on June 20, 1988, with Secretary of Health and Human Services Otis R. Bowen, M.D., as the keynote speaker. The commissioned papers, which served as background for the committee's deliberations, will be published by the National Academy

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PREFACE iX Press as a companion volume to this report under the title Medical Professional Liability and Obstetrical Care: Volume II, An Inter- disciplinary Review. It is customary for TOM committee members to both contribute to and profit from the very process of interrelating among the various disci- plines, perspectives, and points of view usually represented. ~ must extend a special vote of thanks to our committee members who worked with each other across their divergent disciplinary concerns. No one could have asked more of a committee than this one gave to its task. I want to thank Sam Thier, who helped us from the project's initiation to its conclusion. Enriqueta Bond, who served as the division director, helped us launch the study through its initial phase; subsequently, Marian Osterweis took Queta's place in helping the committee and staff director in a variety of ways. Adam Yarmolinsky, a Tong-time member of the TOM, helped us informally but generously at various times during the study, even leading the group through one meeting on the thorniest legal matters. I must, however, reserve my greatest expression of thanks and admi- ration (an expression that I know is shared by my colleagues on the committee) for Victoria Rostow, who saw the project through from begin- ning to end as the staff director. Her intellectual and substantive work was invaluable; she did a superior job. On behalf of the committee, I would like to thank the various re- viewers of the manuscript; their efforts significantly improved the re- port. Finally, I would like to thank Helen Schindler for her faithful and proficient handling of the manuscripts. RoGER J. BULGER Committee Chairman

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Contents 1. Summary of Conclusions and Recommendations Maternity Care in the United States........... - : 3. The Effects of Medical Professional Liability on the 1 .14 Availability of Obstetrical Providers 35 4. The Impact of Medical Professional Liability on the Provision of Obstetrical Care to Poor Women and Women Served by Medicaid. . 5. The Effects of Medical Professional Liability on the Practice of Obstetrics ............. 6. Obstetrical Malpractice Insurance . . 7. The Legal System: The Committee's Findings and Proposals for Change.......................... S. Principal Findings and Recommendations. Glossary. Bibliography .54 .73 .92 .125 .147 .157 .166

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xii CONTENTS APPENDIXES A. Summary of Methodology Used in Studies of Changes in Obstetrical Practice .. .... B. Summary of Study Results Regarding Changes in Obstetrical Practice.................... Summary of Study Results Regarding Professional Liability, Family Practitioners, and Rural Areas D. State and National Liability Surveys Summarized. E. Survey of Selected Risk Management Activities .... F. Risk Management Activities and Experience Rating Policies of Selected Malpractice Insurers. G. Possible Modifications to the Virginia Neurological Birth-Related Injury Compensation Act ........ Members of the Committee Index ..... .187 .197 .206 .212 .216 - .218 .226 ....... 228 . .233

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Medical Professional Liability and the Delivery of Obstetrical Care

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