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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.
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Representative terms from entire chapter:
cerebral palsy
