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OCR for page 147
8
Principal Findings and
Recommendations
After examining all the available
evidence, the committee concluded that there is indeed a medical profes-
sional liability crisis and that it is adversely affecting the delivery of
obstetrical care in this nation (especially for poor women, rural women,
and high-risk women); compromising the therapeutic value of the pro-
vider-patient relationship; altering the types of obstetrical care given,
often without medical justification; and adding to the costs of obstetrical
care. While confident in drawing these conclusions, the committee also
recognizes that professional liability concerns are but one of many forces
altering the way in which health care is delivered in the United States.
A substantial body of data exists on various aspects ofthe professional
liability problem, including repeated surveys of obstetrical providers
over a period of almost 10 years. These data are incomplete and tend to
be flawed by methodological shortcomings, such as skewed samples,
heavy reliance on physician self-reports, and poorly worded questions,
which compromised the committee's ability to draw conclusions about
some areas of concern. Taken as a whole, however, the data consistently
suggest that obstetrical providers are limiting their practice in ways
that diminish access to care, particularly for poor women, and changing
their practice in response to professional liability concerns.
147
OCR for page 148
148 MEDICO PROFESSIONAL LI~iTY: VOGUE
PRINCIPAL FINDINGS
Medical Malpractice Insurance bends
and Their Implications
1. Greater frequency and severity of claims. The data available to the
committee suggest that claims arising out of obstetrical practice are, on
average, both more numerous and more severe than claims relating to
other medical specialties. Although the data suggest that this has been
true for many years, the recent increases for obstetrics appear to be
greater than for other groups (Chapters 1 and 61.
2. Obstetrician-gynecologists' increases inpremiums. All physicians in
the United States have been faced with rising costs of professional
liability insurance in the 1980s, but available data suggest that obste-
trician-gynecologists have experienced the greatest rate increases
(Chapter 61.
3. Premium increases for family physicians practicing obstetrics. The
committee found no systematic surveys of either insurance company
policy with regard to family practice or the risk experience of family
physicians. The data available indicate that family physicians who
include obstetrics in their practice experienced greater than average
increases in medical professional liability insurance premiums (Chap-
ter 61.
4. Nurse-midwives' substantial increases in premiums. Although the
data on nurse-midwives are scarce, the committee concluded that nurse-
midwives have faced increases in medical professional liability insur-
ance premiums that appear to exceed their claims experience. Despite
their historically low rate of being sued, premiums for nurse-midwives
have increased substantially in the 1980s. The committee also noted
that nurse-midwives pay proportionately more in insurance premiums
(approximately 14 percent of their gross income) than obstetrician-
gynecologists (10 percent) or family and general practitioners (4 per-
cent) (Chapter 61.
5. Afforclability of professional liability insurance. The committee
found a consensus that the crisis of availability of medical professional
liability insurance for physicians in the mid-1970s was largely ad-
dressed by the appearance of physician-owned companies, joint under-
writing associations, and the conversion to claims-made policies. There
is, however, continued concern in most quarters about the availability of
medical professional liability insurance for nurse-midwives and about
the affordability of medical professional liability insurance premiums
(Chapter 61.
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PRINCIPAL FINDINGS AND RECOMMENDATIONS 149
6. Inconclusive data on the economic burden of premiums. Although
providers often cite affordability of medical malpractice insurance pre-
miums as a major concern, the committee concluded that it was difB~-
cult to determine whether the premiums constitute a real economic
burden for obstetrical providers. Data suggest that obstetrician-
gynecologists as a group appear to have maintained their average
net real income during the decade between 1975 and 1985. However,
the committee notes that these national statistics may mask impor-
tant variations among obstetrical providers in various geographical
regions and practice settings and with different levels of experience
(Chapter 61.
7. Rising premiums linked to increased fees. The evidence available to
the committee suggests that, to compensate for rising medical malprac-
tice insurance premiums, fees for obstetrical services have been in-
creased, but not by as much as premiums. Moreover, defensive medical
services undertaken, at least in part, to protect providers against profes-
sional liability claims have also added to the cost of obstetrical care
(Chapter 61.
8. Insurance industry underwriting practices. In its limited inquiry of
the matter, the committee did not find support for claims that excessive
profit taking on the part of the medical malpractice insurance industry
has been a major contributor to the medical professional liability prob-
lem in obstetrics. Studies examined by the committee suggest that the
principal factors in the growth of medical professional liability pre-
miums appear to be increased frequency and severity of claims and
lower interest rates, which have reduced insurers' investment income
(Chapter 61.
9. Insurers increasing risk management activities. The committee
found a variety of efforts by insurers to use their information bases to
identify high-risk areas and to encourage more effective or appropriate
methods of managing the risks of obstetrical care. Some efforts have
taken place in commercial insurance companies, but more have been
initiated in nhvsician- and hospital-sponsored organizations (Chapter
61.
10. Proposals for altering the medical professional liability insurance
system. Several proposals have been advanced in the last decade to
address the medical professional liability problem by altering the prac-
tices of medical malpractice insurers. The committee found that, al-
though there has been some limited experience with these proposals in
certain states, there is not yet enough experience or data to enable it to
recommend any of these proposals for nationwide adoption (Chapter 61.
This is an area that deserves further study.
OCR for page 150
150 MEDiC~ PROFESSIONAL CITY: VOICE ~
Effects of Professional Liability Concerns
on Access to Care
11. Limitation of obstetrical practice. Obstetrician-gynecologists and
family physicians increasingly report that they are eliminating the
obstetrical component of their practices or reducing care to identifiable
high-risk women because of professional liability concerns, whether the
cost of medical professional liability insurance or the fear of being sued.
The data also suggest a trend among obstetrical providers toward limit-
ing or eliminating obstetrical practice earlier in their careers because of
professional liability concerns (Chapter 31.
12. Effect of reduced care of high-risk women. The committee found
that, whereas reduced availability of care for high-risk patients may
affect the entire population, it particularly affects low-income women,
who are disproportionately represented among the high-risk group
(Chapter 31.
13. Elimination of obstetrical practice. Available data indicate that
more family practitioners are dropping obstetrical care altogether be-
cause of professional liability concerns (Chapter 31.
14. Nurse-midwifery adversely affected. The committee found that the
problems associated with the rising cost and diminished availability of
professional liability insurance have changed the organization of nurse-
midwifery practice, changed the ways in which nurse-midwives practice
their profession, and curtailed opportunities for nurse-midwives (Chap-
ter 31.
15. Severely reduced availability of obstetrical care in rural areas. The
committee found that the delivery of obstetrical services in rural areas
is adversely affected by family physicians' eliminating their obstetrical
practice. It is estimated that the number of obstetrical providers in
nonmetropolitan areas has fallen by approximately 20 percent over the
past five years (Chapter 31.
16. Reduced care of Medicaid recipients and other poor women. Avail-
able data suggest that the cost of obstetrical liability insurance is
exacerbating the already low Medicaid participation by obstetrical pro-
viders in most jurisdictions. In addition, the committee found consider-
able anecdotal material suggesting that providers fear that poor women
are more litigious than other women, a claim not supported by the
available data. The committee is persuaded that the effects of profes-
sional liability concerns in obstetrics are being acutely felt by low-
income women and women whose obstetrical care is financed by Medi-
caid or provided by Community Health Centers or Migrant Health
Centers (Chapter 41.
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PRINCIP~ FINDINGS ED RECOMMENDATIONS 151
17. Obstetrical services at health centers threatened. The committee
found that professional liability concerns have reduced the ability of
nearly every Community or Migrant Health Center studied to provide
or purchase necessary services for pregnant women. Centers reported
that the cost and availability of insurance compelled them to limit the
obstetrical services that they offered and sometimes to rely on inex-
perienced physicians (Chapter 41.
Effects of Professional Liability Concerns
on the Practice of Obstetrics
18. Some changes benefiting patients. The committee believes that
many of the changes in the way that obstetrics is practiced in the United
States have benefited patients. In particular, the committee noted re-
ports that physicians have improved their recor~keeping, increased
appropriate diagnostic testing, increased discussion with patients, in-
creased their use of informed-consent documentation, and given greater
attention to their relationships with their patients (Chapter 51.
19. Increased cesarean section rate. The committee studied data docu-
menting the rise in cesarean deliveries and found that concerns about
medical professional liability and excessive reliance on electronic fetal
monitoring (EFM) are among the many factors affecting the rising rate
(Chapter 51.
20. Continued use of electronic fetal monitoring. The committee re-
viewed data relating to the effectiveness of EFM and found that it has
not improved overall obstetrical outcomes but has increased the overall
costs of obstetrical care. It appears, moreover, that liability concerns,
particularly fear of being sued when an infant exhibits brain damage,
are at least partly behind the continued use of EFM. The committee
found that virtually no technology assessment preceded the diffusion of
EFM: by the time the results of the first technology assessments of EFM
were published in 1979, nearly half of all deliveries in the United States
were being monitored electronically (Chapter 51.
21. Cerebral palsy not strongly linked to birth events. Brain damage of
an infant is the most frequent allegation in obstetrical malpractice
claims and constitutes a disproportionately high percentage of obstetri-
cal malpractice payments. Cerebral palsy is one ofthe more common and
distressing forms of infant brain damage. The committee reviewed a
large number of studies which concluded that factors of labor and deliv-
ery play a relatively small role in cerebral palsy. These studies sug-
gested that medical science is not able to determine the cause or causes
of most cerebral palsy and that no single cause is implicated. The
OCR for page 152
152 MEDICM PROFESSIONAL CITY: VOICE ~
committee also concluded that EFM has not proven effective in identify-
ing or preventing cerebral palsy cases (Chapter 51.
22. Training of residents modified. Many respondents to an informal
survey of chairmen of departments of obstetrics and gynecology report
that medical professional liability concerns are having an adverse eject
on the training of new obstetrical residents. They report that the current
legal climate makes it difficult to provide residents with appropriate
responsibility and that the cost of medical malpractice insurance for
obstetricians is impeding the ability of academic medical centers to hire
obstetrical faculty (Chapter 51.
Effects of Professional Liability Concerns
on the Physician-Patient Relationship
23. Physician-patient trust eroded. The committee believes that a pa-
tient's confidence in his or her physician and in the therapeutic process
are essential components of any medical therapy. The data available
strongly indicate that the current medical-legal environment has
eroded physician-patient trust and undermined the therapeutic value of
the physician-patient relationship (Chapter 51.
24. Impaired relationship both cause and effect of liability. The impair-
ment of the physician-patient relationship is not only a consequence of
the professional liability controversy in obstetrics but also a critical
factor in perpetuating it. The committee believes that many medical
malpractice claims are exacerbated by a breakdown in communication
between doctor and patient, a mismatch between their expectations, or a
failure of either to understand the nature of the relationship (Chapter
51.
25. Impaired relationship costly. The committee noted that the under-
mining of the physician-patient relationship by professional liability
concerns-including the increased practice of defensive medicine (diag-
nostic tests and procedures done primarily in response to legal rather
than medical concerns); the dissolution of the therapeutic alliance,
which is often crucial to the healing process; and the avoidance of high-
risk patients and procedures, which may ultimately lead to the need for
more care has significantly increased the cost of health care in this
nation (Chapter 51.
26. Physicians feeling besieged. During the course of its deliberations,
the committee formed the impression that a large segment of the medi-
cal profession regards itself as under siege. The committee found that in
certain instances professional liability concerns have contributed to
transforming the patient-physician relationship from a therapeutic alli-
ance into a more adversarial interaction. The committee concluded that
OCR for page 153
PRINCIPAL FINDINGS AND RECOMMENDATIONS 153
this erosion of trust is undermining the delivery of obstetrical services
in the United States (Chapter 51.
27. Tort litigation system disrupting obstetrical practice. The data docu-
menting the effects of professional liability issues on the delivery of
obstetrical care indicate that the traditional tort system is a slow and
costly method of resolving obstetrical disputes and that it is contribut-
ing to the disruption of the delivery of obstetrical care in this nation.
Moreover, the committee found that the threat of liability is having far-
reaching effects on access to and availability of obstetrical care. The
threat of liability encourages a variety of medically unnecessary pro-
cedures to be overused. Furthermore, health care providers have lost
confidence in tort litigation as the preferred method of resolving claims
related to medical maloccurrence (Chapter 71.
28. Tort reforms an insufficient response. Studies to date suggest that,
although the tort reforms implemented since the mid-1970s may have
reduced the increase in claims frequency and magnitude in some states,
they have not had a dramatic effect on the costs, either direct or indirect,
of the tort litigation system for resolving obstetrical malpractice claims.
It is the committee's conclusion that tort reforms are not going to lessen
the Tong-term incidence and severity of obstetrical malpractice claims
enough and, therefore, will not lessen the attendant problems caused by
the current professional liability climate in obstetrics (Chapter 71.
29. Data on efficacy of alternatives lacking. A number of alternatives to
the civil justice system for resolving medical malpractice claims have
been discussed in the past several years; however, there has been little
practical experience with these alternatives in the United States. Ac-
cordingly, the committee found there is a limited data base on the costs
of these alternatives, the claims frequency under these regimes, and
their effectiveness in efficiently and fairly resolving medical claims
(Chapter 71.
RECOMMENDATIONS
The committee has a modest number of recommendations to help
lessen the recurrence of professional liability crises in the long run and
to relieve some of the immediate problems stemming from professional
liability concerns. The ultimate goal of all the committee's recommen-
dations is to increase access to high-quality, affordable obstetrical care
for all women, regardless of ability to pay, where they live, or where
their care is delivered. In the committee's view a doctor-patient relation-
ship based on mutual trust is essential to high-quality medical care.
Although it is difficult to formulate a series of precise recommendations
in this regard, the committee urges individual providers, provider
OCR for page 154
154 MEDICAL PROFESSIONAL LAITY: VOLUME ~
groups, patients, insurers, the legal profession, policymakers, and edu-
cators to join in supporting this objective.
Long-Term Recommendations
1. States should consider alternatives to the tort system. The commit-
tee recommends that states focus their future reform efforts on develop-
ing alternative methods of resolving medical malpractice claims. Al-
though there has been little practical experience with alternatives to
the tort system for resolving medical malpractice claims in the United
States, the committee determined that, based on the theoretical litera-
ture available, three alternatives appear particularly promising. The
committee recommends that states evaluate these three proposals,
among others, for implementation on a limited basis: the no-fault desig-
nated compensable events scheme (including the variants enacted in
Virginia and Florida providing no-fault compensation for certain neuro-
Togically impaired infants); the AMA-Specialty Society's fault-based
administrative system; and legislation authorizing the use of private
contracts to stipulate medical professional liability arrangements or
alternative procedures for determining liability between providers and
patients.
2. The federal government should support demonstration projects. The
committee believes that the primary responsibility for resolving the
medical professional liability problem rests with the states, but it also
believes that the federal government should stand ready to assist the
states. To that end, it recommends that the federal government, through
the Department of Health and Human Services, fund pilot projects for
various solutions and studies of proposed state legislation.
3. A national data base on malpractice claims should be developed. The
federal government, through DHHS, should assist in the development of
a national data base on medical malpractice claims to assist the states in
their efforts to understand and solve the medical professional liability
problem. The Health Care Quality Improvement Act of 1986 mandates a
data bank for information related to licensing, sanctioning, and disci-
plining of health care providers. The committee approves of this legisla-
tion but believes that a more extensive data base is required to facilitate
further study of the problem. It recommends that the national data base
include required disclosures by medical malpractice insurers regarding
rates, payouts, settlements, and claims; by hospitals and hospital
groups and other providers and provider groups regarding claims; and
by relevant state agencies.
4. Systematic technology assessment is needed. The committee joins
other groups, such as the Health Care Financing Administration's Ef
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PRINCIPAL FINDINGS ED RECOMMENDATIONS 155
festiveness Initiative, the National Center for Health Services Re-
search's Health Care Technology Assessment Program on Outcomes
Research, and the Institute of Medicine's Council on Health Care Tech-
nology, in recommending that sufficient primary data be generated to
determine the safety, effectiveness, and other attributes of new technol-
ogies relevant to obstetrics and other fields of medicine. The committee's
examination of EFM and other practice changes in obstetrics has led it to
conclude that systematic effort is required to establish the appropriate-
ness, reliability, and effectiveness of new medical procedures before they
are widely disseminated and become the accepted standard of care.
Short-Term Solutions
5. States should address the access problems of the poor at once. Al-
though the committee believes that efforts to develop alternatives to the
tort system hold the most promise, the committee also urges states to
address immediately the disruptions and deterioration in maternity
services for the poor that have been worsened by professional liability
concerns. The committee recommends that the states and the federal
government consider several short-term solutions simultaneously with
their efforts to resolve the medical professional liability crisis generally.
These appear as recommendations 6 through 8 below.
6. Federal Tort Claims Act Coverage, or its equivalent, should be ex-
tended to certain obstetricalpractitioners. To lessen the immediate prob-
lems posed by professional liability issues in government-financed Com-
munity and Migrant Health Centers, Congress should authorize the
extension of the personal immunities offered by the Federal Torts
Claims Act, or equivalent coverage, to all practitioners of obstetrical
care at these centers. Such an action would relieve practitioners of steep
malpractice insurance and of personal liability, while providing plain-
tiffs a legal remedy.
7. States should contribute to professional liability coverage for Medi-
caiciproviders. As a temporary measure to ensure full access to obstetri-
cal care for women whose care is financed partly by Medicaid, the
committee recommends that other states follow the examples of Mis-
souri, Hawaii, and Montgomery County, Maryland, which have taken
actions to reduce the professional liability risk of providers of obstetrical
services to poor women. The committee recommends that, until the
obstetrical professional liability issue is fully resolved, states should
implement programs that would either indemnify or subsidize the medi-
cal professional liability insurance premiums of obstetrical providers
who participate in Medicaid or otherwise provide care to low-income
women.
OCR for page 156
156 In_ ~'
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mi~ee recommends fast the Tonal Heshb Service Coma Hose
resources bow been severely restricted in recent Mars' be r~ived and
Upended. Confess should reinstate general scholarships, Upend the
program of scholarships far students with exceptional hnancisl need,
Ed increase loan repaved options to increase the number of past
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Representative terms from entire chapter:
medical professional
