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5 The Effects of Medical Professional Liability on the Practice of Obstetrics rim . l he committee believed from the outset that, in addition to examining the implications of medical profes- sional liability concerns on access to care, its mission was to study the effects of these concerns on the day-to-day practice of obstetrics. Are professional liability concerns altering the kinds and numbers of pro- cedures performed? What is the relationship of the cesarean section rate to professional liability concerns? Is electronic fetal monitoring clearly an effective technology, or has its use been promoted primarily by professional liability concerns? Are professional liability concerns af- fecting the training of obstetrical residents? Finally, what has been the effect of medical professional liability concerns on the physician-patient relationship, and what are the implications of these changes? CHANGES IN PRACTICE PA1Y ERNS OF INDIVIDUAL PHYSICIANS There is no question that physicians themselves firmly believe that the current medical liability climate has prompted them to change the way in which they practice obstetrics. According to a 1985 survey by the American College of Obstetricians and Gynecologists (ACOG), 41 per- cent of obstetricians surveyed reported that they have altered the way in which they practice obstetrics as a result of the risk of medical liability (ACOG, 19851. Among the practice changes reported are (1) increased use of testing and other diagnostic and monitoring procedures, (2) in 73
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74 MEDICAL PROFESSIONAL CITY: VOLUME ~ creased use of written informed consent, (3) increased frequency of consultations with other physicians, (4) increased attempts to provide written or taped information to patients, and (5) more frequent explana- tion of potential risks of a recommended procedure (ACOG, 19851. The committee believes that, for the most part, these are examples of how the current liability climate has led to better patient care and has enhanced the physician-patient relationship. Family physicians also report that the professional liability climate is altering the way in which they practice obstetrics. In 1987,8.9 percent of those family physicians who currently include or have ever included obstetrics in their practices reported that they have either decreased the number or the type of obstetrical procedures they perform or discon- tinued obstetrics altogether because of the cost or availability of profes- sional liability insurance (AAFP, 1987) (see Table 5.11. In 1987 a full 27 percent of obstetrician-gynecologists respondents nationwide reported that professional liability concerns have caused them to decrease the amount of high-risk obstetrical care they are providing (ACOG, 19881. This compares with 18 percent in 1983 and 23 percent in 1985 (ACOG, 1983, 19851. It is difficult to assess the implica- tions ofthis development. On the one hand, the more frequent referral of high-risk patients to obstetricians who specialize in their care may very well lead to better patient care. Unfortunately, there are no data that assess whether high-risk patients who are being avoided by obstetri- cian-gynecologists are in fact receiving such specialized care. Many high-risk patients are low-income and minority women who lack ready access to health care in general and to prenatal care in particular. The committee is concerned that these reports of curtailment of high-risk TABLE 5.1 Changes in Obstetrical Practice by Family and General Practitioners Change Family, General Practitioners No. % Decreased obstetrics because of liability insurance 803 problem Discontinued obstetrics because of liability insurance problem 1,672 8.9 18.6 Have not curtailed obstetrics 3,244 36.1 Discontinued obstetrics for other reasons 3,221 35.8 No response 46 0.5 Total 8,986 100.0 SOURCE: American Academy of Family Physicians, 1987. Family Physicians and Obstetrics: A Professional Liability Study. Kansas City, Mo.
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EFFECTS ON PRACTICE OF OBSTETRICS 75 care may be a signal that poor and minority women are not receiving the care they need. Another trend noticed by the committee is the movement away from solo practice by obstetricians, a trend shared to some extent by the rest of the medical profession. ACOG data reveal that significantly fewer re- spondents were in solo practice in 1987 (34 percent) than in 1985 (45.2 percent) (ACOG, 1985, 19881. The committee believes that this trend is caused by a variety of economic and social factors. THE RISING CESAREAN SECTION RATE Some 20 years ago, the rate of cesarean sections in the United States was approximately 5 percent; in some areas, it is now 25 percent (P. J. Placek, personal communication, 19881. Some observers have specu- lated that it could rise to 40 or 50 percent in the next 20 years (Placek et al., 19871. Because of the many allegations that physicians are performing more cesarean sections in response to the threat of lawsuits, the committee decided to investigate the data relating to cesarean sections. It con- cluded that professional liability concerns are one of many variables affecting the rate. The most commonly cited reasons for the increase in cesarean sections are repeat procedures for women who have had an earlier section or sections (Taffel et al., 1987) and delayed childbearing (NIH, 1981; Placek et al., 19871. There is also an indication that women of higher socioeconomic status and women with a medical family back- ground are more likely to have a cesarean section than Tow-income women. One study found that American women physicians have the highest rate of all groups (Dugowson and Holland, 19871. Another significant contributing factor is the widespread use of elec- tronic fetal monitoring (EFM). Sampling offetal scalp bloo~to ascertain metabolic status of the infant, which improves the predictive value of monitoring, may not, in the view of many experts, provide an effective screen for cesarean section, particularly in low-risk cases (MacDonald et al., 1985; Leveno et al., 19861. Overall, it has been estimated that 48 percent of the increase in cesarean sections is due to repeat cesarean sections and 16 percent to fetal distress (Taffel et al., 19871. Additional factors contributing to the increase in cesarean sections include abandonment of vaginal breech deliveries; increased use of cesarean deliveries for infants with very low birthweights and, for multiple pregnancies, decreased use of mi~forceps deliveries; and the medical-legal environment (Sachs, 19891. Other factors have been asso- ciated with the rising cesarean section rate, but it is not clear whether they helped cause it: namely, lack of prenatal care, hospital size and
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76 MEDICAL PROFESSIONAL LIABILITY: VOLUME I ownership, patient's insurance coverage Epatients in health mainte- nance organizations (HMOs) appear to have lower rates], and socio- economic status. There are no data documenting the number of cesarean sections that are purely defensive, that is, performed solely in response to fears of litigation; however, there is a great deal of anecdotal data to suggest that this is a widespread phenomenon. Failure to perform a cesarean section in the presence of an abnormal fetal tracing can be a major factor behind the initiation of a medical malpractice claim (Sachs, 19891. Sachs has reported that 80 percent of obstetrical malpractice claims in Massa- chusetts were associated with the charge of failure to perform a cesarean section. The committee heard numerous reports that widespread use of- fetal monitoring has contributed to the increase in the cesarean rate. Although the studies comparing maternal mortality from vaginal and cesarean deliveries are in conflict (NICHHD, 1979; Sachs, 1989), all studies show that cesarean section delivery does increase maternal morbidity, including increased incidence of infection, longer hospital- ization, problems of bonding with the infant, as well as rarer complica- tions, including hysterectomy and bowel trauma. Electronic Fetal Monitoring The objective of obstetrical care is the birth of a normal baby to a healthy mother. To help achieve that goal, it has been customary for many years to monitor the fetus during labor to determine whether it is in danger. If monitoring detects that the fetus is in distress, the obstetri- cian may be able to intercede medically or surgically, alleviate the distressing condition, and ensure the birth of a normal baby. Since so much has been achieved through technology, it is not surprising that many physicians and patients believe that use of one of the most modern and widespread methods of monitoring, EFM, will prevent many abnor- mal births. The desire for and expectation of a normal baby are overwhelming, and the birth of a baby with brain damage, one of the more common and most disturbing forms of abnormality, is devastating. When babies with brain damage are born, the persons affected may assume that the obstetrician did not use EFM appropriately and that medical malprac- tice occurred. Often redress is sought through the courts. Indeed, the current medical liability crisis is epitomized by the frequency with which obstetricians are being sued because the birth of a baby with brain damage is alleged to be the result of malpractice. Brain damage of the infant accounted for 31 percent of the claims made against obstetricians in 1987 (ACOG, 1988~. Payments for claims
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EFFECTS ON PRACTICE OF OBSTETRICS 77 related to birth injuries constituted nearly 60 percent of all medical malpractice indemnity payments in California in 1986 (Medical Under- writers of California, 19871. Improper use of EFM is implicated in significant numbers of these claims. In a recent review by the Harvard Risk Management Foundation of 54 open and closed obstetrics-related cases managed over a 10-year period, nearly two-thirds of the losses involved alleged problems with fetal monitoring or related documenta- tion (Risk Management Foundation, 19861. The committee believed it important to examine the role of EFM in obstetrical care, the history of its development and acceptance as an intervention, the evidence related to its efficacy, and how professional liability concerns have influenced its use. The committee's findings, reported below, demonstrate that data do not support the effectiveness of EFM in reducing neonatal mortality and morbidity. The most recent epidemiological data available to the committee suggest that the major- ity of cases of brain damage are not due to delivery events; that the frequency of most forms of brain damage, such as cerebral palsy, have not decreased as a result of the widespread use of EFM; and that the causes of most cerebral palsy and mental retardation are not known. History A detailed history of the development of EFM is given by Steven Thacker in the companion volume of this report (Thacker, 19891. Below is a brief summary. The essentials of EFM devices were developed in 1972, and by the end of that year there were 1,000 systems in place in the United States. Initially, EFM was thought to be a useful means of detecting asphyxia. It was believed that its use would lead to an amelioration of asphyxia and the prevention of birth injury, because it would permit the obstetri- cian to deliver the baby surgically, if necessary. A survey in 1976 revealed that 77 percent of physicians believed that all labors should be electronically monitored (Hel~ford et al., 19761. In facilities with moni- tors the monitors were used in 86 to 100 percent of deliveries (Thacker, 19891. A study of upstate New York birth records indicated that 47 percent of all 1978 live births were accompanied by some form of EFM (Thacker, 19891. By 1986,75 percent of New York State live births were being monitored electronically (D. Mayack, personal communication, 19881. The current national nasality survey includes detailed questions about EFM; results will be reported in 1990 (Thacker, 19891. As a tool, EFM was easy to learn, imposed little change on practice style, replaced a seemingly imperfect method, and appeared at a time when new technologies were being readily accepted in many sectors of
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78 MEDICO PROFESSIONAL CITY: VOLUME ~ society. EFM had strong advocates in the national and international obstetrical communities. Many leaders of the academic obstetrical com- munity were at the forefront of EFM use, and they communicated their enthusiasm in respected medical journals and at professional meetings. The use of EFM spread rapidly, both in academic medical centers and among individual practitioners. Despite the widespread use of EFM in the early 1970s, the results of the first U.S. randomized clinical trials, which demonstrated little or no benefit from EFM, were not published until 1976 and 1979 (Banta and Thacker, 1979a, 1979b). In 1979, some seven years after EFM became a widespread technology, a National Institutes of Health (NTH) consensus pane] concluded that it was potentially beneficial in all pregnancies, should be strongly considered in high-risk pregnancies, and that inter- mittent auscultation was equally acceptable for use in all pregnancies (NICHHD, 19791. Regulatory Failure The Food and Drug Administration (FDA) seeks to ensure the safety and efficacy of drugs and certain medical devices through licensing, but many medical technologies, such as EFM, that were in use prior to the enactment of the Medical Devices Act of 1976 have never been formally evaluated by the FDA Esee the federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. §301 et seq. (198811. New procedures and treatments to be tested in experiments are regulated by the Department of Health and Human Services if the experimenting institution is funded by the fed- eral government in whole or in part. These regulations require the institution sponsoring the research to establish Institutional Review Boards to evaluate research on new procedures and treatments t45 C.F.R. §46.101(a) (198511. Clinical innovation falls between standard practice and experimenta- tion. Although many sectors of the health care enterprise have an interest in the safety, electiveness, cost-effectiveness, and social, ethi- cat, and legal impacts of new and innovative health care technologies, evaluation of these concerns is ad hoc and irregular. Many commenta- tors have worried about the absence of controls in innovative procedures and technologies (Cowan and Bertsch, 19841. Recently, the Institute of Medicine's Council on Health Care Technology published a reference guide to organizations, assessments, and information resources in medi- cal technology, the Meclical Technology Assessment Directory (IOM, 19881. The committee found that the organizations and institutions that were in a position to evaluate EFM failed to do so before its use became
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EFFECTS ON PRACTICE OF OBSTETRICS 79 widespread. The NTH and industry provided generous financial support to the developers of modern EFM but did not provide support for the clinical trials to evaluate it. Nor has the FDA's Medical Devices Program ever assessed the efficacy of EFM. Third-party insurers, such as Blue Cross and Medicaid, which are in a position to evaluate new procedures, failed to question the efficacy of EFM before setting their reimburse- ment rates for the procedure. Results of Randomized Clinical Trials Randomized clinical trials (RCTs), all of which were performed after EFM was widely accepted, indicate that there is little or no benefit from the use of EFM. To date, there have been nine such trials, conducted in Australia, Denmark, Ireland, Scotland, and the United States (see Thacker, 1989, for a detailed comparative analysis). Not a single ROT has shown a statistically significant decrease in the rate of prenatal death, intrapartum stillbirth, neonatal death, one-minute Apgar score of less than 7, one-minute Apgar score of less than 4, or frequency of neonatal intensive care unit admissions as a result of the use of EFM. These studies suggest that EFM has simply not done what its propo- nents argued it would do: it has not reduced neonatal morbidity and death, and, as discussed below, it has not reduced the frequency of developmental disability. Analysis of the pooled data of all the RCTs did show that the rate of neonatal seizures was decreased by EFM use. However, a follow-up study of 39 infants born in Dublin who had seizures in the neonatal period showed no neurological difference at one year of age between infants monitored electronically and those monitored by auscultation (Thacker, 19891. The dilemma posed by these findings is compounded by the finding that EFM had no measurable benefit for highly restricted groups of high-risk deliveries (Leveno et al., 1986; Luthy et al., 19871. Effect of EFM on the Frequency of Cerebral Palsy Cerebral palsy is one of the more common forms of brain damage of infants. It is a group of diverse, nonprogressive syndromes in which the brain is affected in such a way that motor function is impaired; quadri- plegia and hemiparesis are characteristic manifestations; and mental retardation, seizures, and dystonia may be present. Until recently, cerebral palsy was thought to be linked to abnormal parturition, diff~- cult labor, premature birth, and hypoxia or asphyxia of the infant. The committee evaluated more recent data that cast serious doubt on the correlation between presumed hypoxia and later cerebral palsy. In a
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80 MEDICAL PROFESSIONAL LIABILITY: VOLUME I series of reports published during the past decade, Karin Nelson and Jonas Ellenberg have analyzed data concerning cerebral palsy obtained during the National Collaborative Perinatal Project of the National Institute of Neurological and Communicative Disorders and Stroke (Nelson and Ellenberg, 1979, 1981, 1984, 1985, 1986, 19871. Approx- imately 54,000 women participated in this prospective study, which was carried out between 1959 and 1966 in 12 teaching hospitals in the United States. Detailed histories and laboratory studies of the mothers and their babies were obtained. Pediatric and neurological examinations were done at 1 and 7 years of age. The outcome at 7 years was known for 45,559 children born as singleton infants of 51,285 pregnancies. In a univariate analysis of risks associated with cerebral palsy, Nelson and Ellenberg found that the characteristics associated with the highest relative risk were newborn seizures, respiratory distress syndrome, aspiration, being in an incuba- tor for three or more days, and having an Apgar score of O to 3 at five minutes (listed in decreasing order) (Nelson and Ellenberg, 19851. How- ever, there were almost identical rates of risk factors in children without cerebral palsy. None of these factors accounted for a statistically signifi- cant percentage of cerebral palsy. Subsequent multivariate analysis found no factor arising in labor or delivery to be a major predictor of cerebral palsy. Of the cases studded, 69 percent did not have even one clinical marker of asphyxia. Of the 21 percent that did, 58 percent had an alternative explanation for the cerebral palsy (congenital malformations, birthweight of less than 2,500 grams, microcephaly, or some other). The only important risk factor for cerebral palsy in a baby weighing more than 2,500 grams at birth was severe fetal bradycardia; less than 2 percent of the children with cere- bral palsy had that risk factor. The rate of false positives among high- risk predictors was 97 percent, except in the case of babies weighing more than 2,500 grams, where the false positive rate was 99 percent (Thacker, 19891. Nelson and Ellenberg conclude "We do not know the cause or causes of most cerebral palsy . . . no one cause contributed much to the out- come . . . no foreseeable single intervention is likely to prevent a large proportion of cerebral palsy . . . results suggest a relatively small role for factors of labor and delivery in accounting for cerebral palsy.... " (1986, p.861. Consistent with these conclusions was a recent NIH review of the matter, which also concluded that the cause of the majority of cases of cerebral palsy is unknown (Nelson and Ellenberg, 19791.
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EFFECTS ON PRACTICE OF OBSTETRICS 81 Electronic Fetal Monitoring, Cerebral Palsy, and Medical Malpractice Although the data relating EFM use to medical liability concerns are limited, it appears that the initial acceptance of EFM technology was fueled in part by such concerns. Moreover, the current professional liability climate supports the continued use of EFM, despite overwhelm- ing evidence that it does not improve neonatal mortality and morbidity rates. Data from ACOG suggest that 46 percent of obstetrical claims in- volved EFM (19881. A recent study conducted by the Risk Management Foundation found that close to two-thirds of closed claims were related to EFM and documentation (Risk Management Foundation, 19861. The legal literature suggests that EFM has become the accepted standard of care in many jurisdictions. The allegation of "failure to monitor" is commonplace in plaintiffs' medical malpractice complaints. Hospital attorneys routinely advise obstetricians both to use EFM and to save the tracing tape in case a claim is made (Schifrin et al., 19851. The committee heard numerous reports that cerebral palsy cases are frequently litigated and that either failure to respond to the EFM tracings or failure to monitor was a frequent allegation in them. The insurance data reviewed by the committee confirmed that indemnity payments related to claims for neurologically impaired children com- prise more than 27 percent of all indemnity payments paid (GAO, 1986; Medical Underwriters of California, 19871. One malpractice insurer, Physicians Insurance Association of America, calculated that cerebral palsy is the second highest diagnosis (following breast cancer) in total indemnity in obstetrics and gynecology (Medical Underwriters of Cali- fornia, 1987), with payments averaging hundreds of thousands of dol- lars. Although the causes of neurological impairment in infants are largely unknown, birth-related events do not appear to be strongly implicated. It is estimated that there is a 5 to 10 percent incidence of neurological handicaps in the entire population. Not all these people require medical, educational, or social services, but a substantial number do. These needs may be part of the impetus behind the malpractice claims. Conclusion EFM, initially developed as a means of detecting fetal asphyxia and preventing its destructive effects, has continued to be used in most deliveries, despite the fact that for almost a decade randomized clinical trials have failed to demonstrate its efficacy. The incidence of cerebral palsy, still popularly and erroneously believed by many to be the result
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82 MEDICAL PROFESSIONAL CITY: VOLUME ~ of fetal asphyxia, has not been reduced by EFM. The available evidence suggests that professional liability concerns have contributed to the continued use of EFM. Not only is there no demonstrated benefit of EFM, it is costly. The frequency of operative deliveries, primarily cesarean sections, has been linked statistically to use of EFM. It has been estimated that the mone- tary cost of EFM, including the cost of cesarean sections associated with its use, may exceed $750 million annually. In addition, there are the costs attending patient morbidity induced by surgery. PRACTICE PATTERNS IN DEPARTMENTS OF OBSTETRICS Noting individual practitioners' reports of practice changes brought about by liability concerns, the committee inquired early in its delibera- tions whether the perceived risk of malpractice litigation was also caus- ing changes at the institutional level, that is, in departments of obstet- rics at university hospitals and academic medical centers. Since there were no available data to answer this question, the committee under- took an informal letter survey of the 132 members of the Association of Professors of Gynecology and Obstetrics who are heads of obstetrics departments. Its purpose was to make a preliminary assessment of whether departments of obstetrics at academic medical centers were, in fact, making changes in the patterns of the delivery of care at an institutional level that had implications for access to and delivery of care. The committee received letters containing both data and opinions about how the current medical liability climate has affected the practice of obstetrics in university hospitals and academic medical centers. Even though all respondents noted a change in practice climate and greater awareness of legal issues, some department heads reported no changes in institutional policy as a result. The responses of many, however, made it clear that both the rising cost of medical malpractice insurance and the overall climate engendered by medical liability issues have brought about changes in the practice and procedures in departments of obstet- rics, the organization of academic obstetrical departments, the teaching of residents, and in the organization of obstetrical practice generally. In addition, a number of respondents noted impediments to access brought about by the problem of obstetrical liability. Reportet1 Changes in Practice The most commonly reported change in practice was the increased frequency of cesarean sections. Most respondents were disturbed by this
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EFFECTS ON PRACTICE OF OBSTETRICS X3 trend but felt unable to stem it because of the risk of malpractice suit. As one department head put it: For many years, a standard part of my teaching to medical students and residents had been to perform only medically and obstetrically indicated ce- sarean sections, uninfluenced by other considerations such as inconvenience, time of the day or night, interference with office hours, monetary gain, or threat of malpractice. I can no longer in good conscience continue to teach the latter principle when the practical results may be a multimillion-dollar suit that can ruin a career and a lifetime of study and service. Because the survey letter specifically mentioned as an example that at least one academic obstetrical department had implemented a policy of delivering all breech fetuses by cesarean section, many respondents addressed this issue, reporting that they, likewise, had implemented such a policy. Other practice changes reportedly brought about by the professional liability climate included avoidance of mi~forceps delivery, decrease in the frequency of outlet forceps deliveries, increased antepartum testing, increased documentation, and increased use of consultation and refer- rals for "high-risk" and "potential high-risk patients," often solely for the purpose of avoiding litigation (see Table 5.21. Another commonly cited response was increased use of continuous EFM during labor, even for low-risk patients: The sole purpose of such surveillance may be only to provide a heartbeat-to- heartbeat credible objective record for defense purposes in the event of future litigation. Reliance on these methods of fetal surveillance by attending physi- cians Reemphasizes by role modeling example the appropriateness of bedside clinical evaluation and clinical judgment. Many respondents acknowledged that some changes motivated by professional liability have led to better patient care. In particular, many respondents commented that better documentation and increased phy- sician-patient discussion have undoubtedly enhanced patient care. Other beneficial changes included an increase in the use of consulta- tion for high-risk cases and the requirement that faculty remain in the hospital, available to residents, 24 hours a day. An increase in regional- ization of obstetrical care was reported, with increased use of computer networks for evaluating antepartum data and fetal heart rate tracings; these were believed to be positive changes as well. Respondents reported increased reliance on standard protocols for obstetrical management, which may or may not improve obstetrical care. Finally, a formal pro- cedure for certifying residents was initiated in some programs, includ- ing delineation of their specific operative privileges and experience.
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84 MEDICAL PROFESSIONAL LIABILITY: VOLUME I TABLE 5.2 Changes Reported in the Committee's Survey, March 1988 Changes in Practice Liberalized criteria for cesarean sections Decreased frequency of vaginal breech deliveries Elimination of vaginal breech deliveries Delivery of all twins by cesarean section Avoidance of midforceps deliveries Marked decrease in frequency of outlet forceps deliveries Increased antepartum testing Obstetricians no longer provide obstetrical anesthesia Increased use of electronic fetal monitoring Universal use of electronic fetal monitoring Increased use of ultrasound Increased use of alphafetoprotein testing Increased use of amniocentesis Increased referrals to tertiary care centers for level-one ultrasound examinations Increased documentation Increased use of consultation 24-hour faculty in-house call Enhanced quality assurance and risk management programs Changes in Teaching Including medical malpractice issues in the curriculum Revised rules and regulations for residents Reduced responsibility for residents Closed mortality and morbidity conferences Diminished participation of part-time and some full-time faculty in education of residents Generally diminished participation of medical students in patient care Residents being named as codefendants in malpractice cases Changes in Practice at the Departmental Level Increased establishment of regional computer networks for integrating antepartum and intrapartum data from obstetrical patients Increased establishment of regional linkups of fetal heart monitors for fetal assessment Development of and reliance on obstetrical guidelines or protocols to standardize care Changes in Careers in Obstetrics Change in the type of medical students entering the profession Decrease in the number of students entering obstetrics Decrease in the number of students entering solo practice Diminished professional mobility due to necessity of purchasing tail coverage for occurrence-based malpractice policies Cost of malpractice insurance influencing faculty hiring in academic medical centers Access Issues Avoidance of high-risk patients Diminished care of uninsured patients More women presenting at hospitals for delivery without adequate prenatal care Routinely obtaining cord-blood gases immediately after birth for all high-risk newborns
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EFFECTS ON PRACTICE OF OBSTETRICS 85 Implications for learning Many respondents indicated that the current professional liability climate in obstetrics is adversely affecting the teaching and training of obstetrical residents. Many also mentioned the increasingly common phenomenon of residents being named as codefendants in malpractice cases. Moreover, because of the continually increasing cost of medical malpractice insurance, some respondents reported a diminished partici- pation by part-time obstetrical faculty in the education of residents. There was considerable concern that the current medical liability cli- mate is preventing obstetrical residents from assuming sufficient re- sponsibility to meet their educational needs. As one respondent com- mented: The present academic atmosphere is such that residents have to be virtually watched in every single activity that they do. I am not convinced in all cases that there is any advantage to such careful supervision, although, admittedly, in some cases there is. My concern is that our '`baby birds" will never be pushed from the nest until they go into private practice, since we give them such little latitude. Some expressed concern that this attitude of secrecy sets an example for the residents and other health professionals that they will carry with them into practice. Other changes included revisions of rules and regulations to restrict further the activities in which residents can engage and to reduce the participation of medical students in obstetrical training. One respon- dent reported that, as a response to the current professional liability climate, "We have closed our Morbidity and Mortality Teaching Confer- ence . . . to students, nurses, and other ancillary personnel [the confer- ence is limited to residents] who may not understand or may misin- terpret the frank criticism of management of specific cases." Thus, it appears that, in the view of many respondents, the medical liability climate is also undermining the teaching and training of medical stu- dents. Effects on Careers in Obstetrics Several respondents believed that there had been a decrease in the number of graduating residents entering independent practice, because the cost of medical malpractice insurance for an independent practi- tioner has contributed to making start-up costs prohibitive. In addition, several respondents noted that as a result of the professional liability problem it has become more difficult for obstetricians to change jobs.
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86 MEDICAL PROFESSIONAL LIABILITY: VOLUME I Specifically, respondents believed that the necessity of purchasing "tail" coverage for claims-made medical malpractice policies has made the cost of hiring new obstetricians prohibitive. As one respondent stated the problem, "Because of the tad] insurance problem, one would wonder if this almost becomes a restraint of trade when it costs an individual obstetrician-gynecologist between $100,000 and $250,000 simply to move and change locations." This problem is also impeding the hiring of physicians by obstetrical departments in academic medical centers. Several respondents noted that the cost of insuring part-time faculty was not significantly less, if less at all, than the cost of insuring full-time faculty. With regard to whether the medical malpractice climate is affecting students' choice of obstetrics as a specialty, the committee received contradictory responses. Several respondents felt that their medical students had been deterred from entering obstetrics. On the other hand, many respondents reported no change in the number of students choos- ing to specialize in obstetrics. Recent statistics failed to confirm a major decline in those choosing obstetrical training, although a decrease from 1984 to 1987, from 8.7 to 6.7 percent of graduating medical seniors, was noted in an Association of American Medical Colleges survey (AAMC, 19871. Many respondents agreed that the great increase in the propor- tion of women entering obstetrics and gynecology (now almost 50 per- cent of residents) has helped avoid what otherwise would have been a major drop in the number of medical students choosing the specialty. Effects on Access to Care Although the committee's letter did not query respondents specifi- cally about their perception of the effect of the liability problem on access issues, a number of respondents noted the increased influx of the medically underinsured into academic medical centers. Their percep- tion is that this influx is a result ofthe professional liability crisis, which is curtailing the availability of federally subsidized obstetrical services outside these hospitals: We are being severely pressured by the number of new, medically indigent patients requiring obstetrical care. These underfunded patients provide a heavy load, which further usurps faculty time and detracts from research, and often creates increased medicolegal risks because of the lack of continuity of care. As practitioners surrounding us have withdrawn from obstetrical practice, these individuals have few other places to go. It is the original Catch-22. Finally, a number of respondents commented on the shrinking avail- ability of obstetrical services in rural areas, the departure of family
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EFFECTS ON PRACTICE OF OBSTETRICS 87 physicians from obstetrical practice, and the overall decrease in obste- trician-gynecologists providing obstetrical services. IMPACT OF MEDICAL PROFESSIONAL LIABILITY ON THE PHYSICIAN-PATIENT RELATIONSHIP The Importance of Must Central to any discussion of the doctor-patient relationship since the time of Greek philosophers is the importance of mutual trust. Both observation and clinical research confirm that a patient's confidence in his or her physician) is central to the healing process (Cassell, 19761. Indeed, research has demonstrated the importance of the placebo effect, that is, clinical benefits that are associated with medical therapy but are not ascribed to the therapy itself. The placebo effect derives from the patient's confidence in the doctor and in the therapeutic process. In a survey of a sample of physicians who had been sued for medical malpractice in Cook County, Illinois, between 1977 and 1981, Charles, Wilbert, and Kennedy concluded that a medical malpractice suit was considered to be a serious and often devastating event in the personal and professional lives of the respondents. The results of their survey strongly indicate that the prevalence of medical malpractice litigation is perceived as undermining physicians' self-confidence and career satis- faction (Charles et al., 19851. The committee agrees with the many reports from physicians and observers that patient-physician trust has been eroded (Relman, 1989) by the current professional liability climate. It believes that this erosion of trust is both one of the causes and one of the consequences of the medical professional liability crisis. The most significant data available to the committee were indirect: if 70 percent of U.S obstetricians can expect to be sued at one time or another (ACOG, 1988), it is abundantly clear that medical malpractice claims are not confined to the worst practitioners or the worst health care institutions. In fact, many observers believe that the most substan- dard physicians are the least likely to be sued, because they serve patients who are too poor and too uneducated to file claims. Although the data relating to the litigation propensity of poor women are, as noted Whenever the term "physician" or "doctor" is used in this chapter in the context of the therapeutic relationship, the reader is asked to remember that it includes the nurse- midwife and other providers.
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88 MEDICAL PROFESSIONAL CITY: VOLUME ~ in Chapter 4, limited, it is clear that some of the best physicians are the most likely to attract suits. There are many reasons that medical malpractice claims and litiga- tion have become so frequent. The United States is one of the most litigious societies in the world; no other nation relies so heavily on the courts for resolution of disputes. Moreover, U.S. couples who have given birth to a child with medical defects often have no financial recourse but a lawsuit against their health care providers. Societies with universal social insurance schemes, such as Canada and the United Kingdom, have been able to limit this problem (King's Fund Institute and Centre for Socio-Legal Studies, 19881. The expectations that patients have of the medical system are being constantly raised by the development of more sophisticated medical technologies. It is clear that the public must be educated to understand the limits of technology and to have a realis- tic understanding of what modern medicine can and cannot offer. F ur- ther, physicians are no longer regarded by the American public as virtually infallible. And, finally, many believe that increasing special- ization and technology have led to the provision of care for higher risk patients, who are more likely to experience a maloccurrence and more likely to sue. Together, the data accumulated and set forth in Chapters 2 through 5 relating to the effects of the professional liability crisis on access to care and on delivery patterns indicate that the result of this breakdown in trust, and the attendant surge in medical malpractice litigation, is likely to be the further deterioration of obstetrical care in the United States. Consequences of the Breakdown in Must The consequences of the disintegration of the physician-patient rela- tionship have been costly to patients, physicians, and, ultimately, to all consumers who pay the health care bills in this nation. The committee is of the view that the decision to bring a medical malpractice claim is often influenced by a breakdown in communication between the doctor and patient, a mismatch between the physician's and the patient's expecta- tions, or a failure of either the physician or the patient to understand the nature of the relationship. During the course of its deliberations, the committee was repeatedly confronted by reports of physicians' negative attitudes toward their patients. The committee formed the impression that a large segment of the profession regards itself as under siege. F urther, there is no question that this has affected the day-to-day interactions between physicians and patients. As Arnold Relman summarized the situation, "The
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EFFECTS ON PRACTICE OF OBSTETRICS 89 warmth and the commitment and the compassion and the concern are changed" (Relman, 19891. It is clear to the committee that many physi- cians no longer think of themselves as Samaritan~rather, they view themselves as victims of the tort litigation system. The committee found that in certain instances, at least from the physicians' perspective, professional liability concerns have contributed to transforming the patient-physician relationship from a therapeutic alliance into a more adversarial interaction. A physician-patient rela- tionship based on a clear understanding of the roles and responsibilities of each and directed toward the patient's needs is more likely to be free of the suspicion and paranoia so often associated with medical malpractice claims. Because of its importance to the healing process, the committee believes that sustaining a doctor-patient relationship based on mutual trust and confidence must be at the heart of any solution to the profes- sional liability problem. REFERENCES American Academy of Family Physicians (AAFP). 1987. Family Physicians and Obstet- rics: A Professional Liability Study. Kansas City, Mo. American College of Obstetricians and Gynecologists (ACOG). 1983. Professional Lia- bility Insurance and Its Effects: Report of a Survey of ACOG's Membership. Washing- ton, D.C. American College of Obstetricians and Gynecologists (ACOG). 1985. Professional Lia- bility Insurance and Its Effects: Report of a Survey of ACOG's Membership. Washing- ton, D.C. American College of Obstetricians and Gynecologists (ACOG). 1988. Professional Lia- bility and Its Effects: Report of a 1987 Survey of ACOG's Membership. Washington, D.C. Association of American Medical Colleges (AAMC). 1987. 1981-1987 Medical Student Graduation Questionnaire. Washington, D.C. Banta, H. D., and S. B. Thacker.1979a. Assessing the costs and benefits of electronic fetal monitoring. Obstet. Gynecol. Survey 34:627-642. Banta, H. D., and S. B. Thacker.1979b. Costs and Benefits of Electronic Fetal Monitoring: A Review of the Literature. DHEW Pub. No. (PHS) 79-3245. Hyattsville, Md.: National Center for Health Services Research. Cassell, E. J.1976. The Healer's Art: A New Approach to the Doctor-Patient Relationship. Philadelphia: Lippincott. Charles, S. C., J. R. Wilbert, and E. C. Kennedy.1984. Physicians' self-reports of reactions to malpractice litigation. Am J. Psychiat. 141:563-565. Charles, S. C., J. R. Wilbert, and K. J. Franke. 1985. Sued and nonsued physicians' self- reported reactions to malpractice litigation. Am J. Psychiat. 142:437-440. Cowan, D. H., and E. Bertsch.1984. Innovative therapy: The responsibility of hospitals. J. Legal Med. 5:219-251. Dugowson, C. E., and S. K. Holland. 1987. Physicians as patient~The use of obstetric technology in physician families. Western J. Med. 146:494-496.
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90 MEDICO PROFESSIONAL CITY: VOLUME ~ General Accounting Office (GAO), U.S. Congress. 1986. Medical Malpractice: Six State Case Studies Show Claims and Insurance Costs Still Rise Despite Reforms. GAO/ HRD-87-21. Gaithersburg, Md. Heldford, A. J., C. N. Walker, and M. E. Wade. 1976. Do we need fetal monitoring in a community hospital? IYans. Pac. Coast Obstet. Gynecol. Soc. 43:25-30. Institute of Medicine (IOM).1988. Medical Technology Assessment Directory. Washington D.C.: National Academy Press. King's Fund Institute and Centre for Socio-Legal Studies. 1988. Medical Negligence: Compensation and Accountability. Oxford, England. Leveno, K. S., F. G. Cunningham, S. Nelson, M. Roark, M. L. Williams, D. Guzick, S. Dowling, C. R. Rosenfeld, and A. Buckley. 1986. A prospective comparison of selective and universal electronic fetal monitoring in 34,995 pregnancies. N. Eng. J. Med. 315:615-619. Luthy, D. A., K. K. Shy, G. Van Bell, E. B. Larson, J. P. Hughes, T. J. Benedetti, Z. A. Brown, J. Effer, J. F. King, and M. A. Stenchever.1987. A randomized trial of electronic fetal monitoring in premature labor. Obstet. Gynecol. 69:687-695. MacDonald, D., A. Grant, M. Sheridan-Pereira, P. Boylan, and I. Chalmers. 1985. The Dublin randomized controlled trial of intrapartum fetal heart rate monitoring. Am. J. Obstet. Gynecol. 152:524-539. Medical Underwriters of California. 1987. 1986 California Large Loss Trend Study/ Malpractice. Oakland. National Institute of Child Health and Human Development (NICHHD). 1979. Part III: Predictors of Fetal Distress: I. Antenatal Diagnosis. NIH Pub. No. 79-1973:1-199. Washington, D.C.: Government Printing Office. National Institutes of Health (NIH), Consensus Development Task Force.1981. Statement on cesarean childbirth. Am J. Obstet. Gynecol. 139:902-909. Nelson, K. B., and J. H. Ellenberg. 1979. Neonatal signs as predictors of cerebral palsy. Pediatrics 64:225-232. Nelson, K. B., and J. H. Ellenberg. 1981. Apgar scores as predictors of chronic neurologic disability. Pediatrics 68:36-44. Nelson, K. B., and J. H. Ellenberg. 1984. Obstetric complications as risk factors for cerebral palsy or seizure disorders. JAMA 251:1943-1948. Nelson, K. B., and J. H. Ellenberg. 1985. Antecedents of cerebral palsy: Univariate Analysis of Risks. Am. J. Dis. Child. 139:1031-1038. Nelson, K. B., and J. H. Ellenberg. 1986. Antecedents of cerebral palsy. N. Eng. J. Med. 315:18-86. Nelson, K. B., and J. H. Ellenberg. 1987. The asymptomatic newborn and risk of cerebral palsy. Am. J. Dis. Child. 141:1333-1335. Placek, P. J., S. M. Taffel, and T. L. Liss. 1987. The cesarean future. Am. Demog. 9(9):46-47. Relman, A. 1989. Medical professional liability and the relations between doctors and their patients. In Medical Professional Liability and the Delivery of Obstetrical Care: Vol. II, An Interdisciplinary Review. Washington, D. C.: National Academy Press. Risk Management Foundation of the Harvard Medical Institutions, Inc. 1986. Forum 7(4):1-8. Sachs, B. P. 1989. Is the rising state of cesarean section a result of more defensive medicine? In Medical Professional Liability and the Delivery of Obstetrical Care: Vol. II, An Interdisciplinary Review. Washington, D.C.: National Academy Press. Schifrin, B. S., E. Weissman, and J. Wiley.1985. Electronic fetal monitoring and obstetri- cal malpractice. Law Med. Health Care 13:100-105.
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EFFECTS ON PRACTICE OF OBSTETRICS 91 Taffel, S. M., P. J. Placek, andT. L. Liss. 1987. Mends in the United States cesarean section rate and reasons for the 1980-85 rise. Am J. Public Health 77:955-959. Thacker, S. B. 1989. The impact oftechnology assessment and medical malpractice on the diffusion of medical technologies: The case of electronic fetal monitoring. In Medical Professional Liability and the Delivery of Obstetrical Care: Vol. II, An Interdisciplinary Review. Washington, D.C.: National Academy Press.
Representative terms from entire chapter: