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Medical Professional Liability
anti the Delivery of
Obstetrical Care
VOLUME I
Committee to Study
Medical Professional Liability and the
Delivery of Obstetrical Care
Division of Health Promotion and
Disease Prevention
INSTITUTE OF MEDICINE
NATIONAL ACADEMY PRESS
Washington, D.C. 1989
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NATIONAL ACADEMY PRESS 2101 Constitution Avenue, NW
Washington, DC 20418
NOTICE: The project that is the subject of this report was approved by the Governing
Board of the National Research Council, whose members are drawn from the councils of
the National Academy of Sciences, the National Academy of Engineering, and the Insti-
tute of Medicine. The members of the committee responsible for the report were chosen for
their special competences and with regard for appropriate balance.
This report has been reviewed by a group other than the authors according to the
procedures approved by a Report Review Committee consisting of members of the National
Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine.
The Institute of Medicine was chartered in 1970 by the National Academy of Sciences to
enlist distinguished members of the appropriate professions in the examination of policy
matters pertaining to the health of the public. In this the Institute acts under both the
Academy's 1863 congressional charter responsibility to be an adviser to the federal
government and its own initiative in identifying issues of medical care, research, and
education.
This project was supported by an Andrew W. Mellon Foundation contribution to the
Institute of Medicine's (IOM) independent funds, a W. K. Kellogg Foundation contribution
to IOM dissemination funds, the March of Dimes Birth Defects Foundation, and The
Harris Foundation. The U.S. Department of Health and Human Services provided support
for an interdisciplinary symposium and publication of background papers as the compen-
dium volume to this report (contract no. 282-88-0039).
Library of Congress Cataloging-in-Publication Data
Institute of Medicine (U.S.). Committee to Study Medical Professional
Liability and the Delivery of Obstetrical Care.
Medical professional liability and the delivery of obstetrical
care: Vol I/Committee to Study Medical Professional Liability and the
Delivery of Obstetrical Care, Division of Health Promotion and
Disease Prevention, Institute of Medicine.
p. cm.
Bibliography: p.
Includes index.
ISBN 0-309-03982-7.
1. Obstetricians Malpractice United States. 2. Insurance,
Physicians' liability United States. I. Title.
[DNLM: 1. Insurance, Liability United States. 2. Malpractice
United States. 3. Obstetrics- United States. WP 33 AA1 I5m]
KF2910.G943I57 1989
346.7303'32 dc20
[347.306332]
DNLM/DLC
for Library of Congress
Copyright (D 1989 by the National Academy of Sciences
Printed in the United States of America
89-12390
CIP
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COMMITTEE TO STUDY
MEDICAL PROFESSIONAL LIABILITY AND THE
DELIVERY OF OBSTETRICAL CARE
ROGER d. BULGER (Chairman,) President, Association of Academic
Health Centers, Washington, D.C.
KENNETH S. ABRAHAM, Professor of Law, School of Law, University of
Virginia, Charlottesville
LINDA H. AIKEN, Trustee Professor of Nursing and Professor of
Sociology, University of Pennsylvania, Philadelphia
LONNTE R. BRISTOW, Specialist in Internal Medicine, Private Practice,
San Pablo, California
ARTHUR L. HERBST, Joseph Bolivar DeLee Distinguished Service
Professor and Chairman, Department of Obstetrics and
Gynecology, Pritzker School of Medicine, University of Chicago
ANGELA RODDEY HOLDER, Counsel for Medicolegal Affairs, Yale-New
Haven Hospital and Yale Medical School, and Clinical Professor of
Pediatrics and Law, Yale Medical School, New Haven, Connecticut
REGINA P. LEDERMAN, Professor and Associate Dean for Academic
Affairs, University of Texas, Galveston, Texas
DONALD N. MEDEARIS, JR., Charles Wilder Professor of Pediatrics,
Harvard Medical School, Cambridge, Massachusetts, and Chief,
Children's Service, Massachusetts General Hospital, Boston
SAM A. Nixon, Director, Division of Continuing Education, The
University of Texas Health Science Center, and Assistant Dean,
Continuing Education, The University of Texas Medical School,
Houston
EDMUND D. PELLEGRINO, John Carroll Professor of Medicine and
Medical Humanities and Director, Kennedy Institute on Ethics,
Georgetown University, Washington, D.C.
JAMES R. POSNER, Executive Vice-President, Voluntary Hospitals of
America, Incorporated, New York City
ANNE H. SCITOVSKY, Chief, Health Economics Division, Palo Alto
Medical Research Foundation, and Teacher, Institute for Health
Policy Studies, School of Medicine, University of California, San
Francisco
BARBARA H. STARFIEI.D, Associate Professor, Pediatrics, and Professor,
Health Care Organization, The Johns Hopkins University,
Baltimore, Maryland
WALTERS. WADLING~N, James Madison Professor, University of
Virginia School of Law, and Professor, Legal Medicine, University
of Virginia School of Medicine, Charlottesville
· --
111
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Study Staff
V~cToRiA P. RO STOW, Study Director
ENRiQuETA C. BOND, Executive Officer, Institute of Medicine
MARIAN OSTERWEIS, Acting Director, Division of Health Promotion
and Disease Prevention
BEAIR POTTER, Editor
WALLACE K. WATERFALL, Editor, Institute of Medicine
HELEN SCHINDLER, Administrative Secretary, Executive Office
LAURIE BETH PEARLMAN, Intern
Commissioned Papers
Lord B. ANDREWS, Research Fellow, American Bar Foundation, and
Senior Scholar, Center for Clinical Medical Ethics, University of
Chicago
OTIS R. BOWEN, Former Secretary, Department of Health and
Human Services, Washington, D.C.
SARAH D. COHN, Associate Counsel, Medicolegal Affairs, Yale-New
Haven Hospital and Yale University, New Haven, Connecticut
STEPHEN DANiE~s, Research Fellow, American Bar Foundation,
Chicago, Illinois
RicHARD A. EPSTEIN, dames Parker Hall Professor of Law, University
of Chicago, and Editor, Journal of Legal Studies, Chicago, Illinois
EtizAsETH H. ESTY, Associate, Sidley and Austin, Washington, D.C.
CYNTHIA FADER, Nurse, Labor and Delivery, and Master's Candidate,
Nurse-Midwifery, University of Pennsylvania, Philadelphia
MARIE HACKBARTH, Former Analyst, Lewin/ICF, Washington, D.C.
JAMEs A. HENDERSON, Frank B. Ingersoll Professor of Law, Cornell
Law School, Ithaca, New York
NEIL T. HotTzMAN, Professor, Department of Pediatrics, The Johns
Hopkins University, Baltimore, Maryland
DANA C. HUGHES, Senior Health Specialist, Children's Defense Fund,
Washington, D.C.
DEBORAH LEWIS-IDEMA, Consultant, Health Policy and Planning,
Washington, D.C.
LoRRAiNE V. KLERMAN, Professor of Public Health, Department of
Epidemiology and Public Health, School of Medicine, Yale
University, New Haven, Connecticut
CAROL C. KoRENsRar, Research Specialist, Center for Population and
Reproductive Health Policy, Institute of Health Policy Studies,
University of California, San Francisco
1V
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W. HENSON MOORE, Partner, Sutherland, Asbill and Brennan,
Washington, D.C.
JACK NEEDLEMAN, Vice-President, Lewin/ICF, Washington, D.C.
CARTER G. PHILLIPS, Partner, Sidley and Austin, Washington, D.C.
ARNOLD S. RELMAN, Editor-in-Chief, The New England Journal of
Medicine, and Professor of Medicine, Harvard Medical School,
Cambridge, Massachusetts
SARA ROSENBAUM, Director, Child Health Division, Children's
Defense Fund, Washington, D.C.
BENJAMIN P. SACHS, Associate Professor, Obstetrics and Gynecology,
Harvard Medical School and Harvard School of Public Health,
Cambridge, Massachusetts
SARAH H. SCHOLLE, Student, Department of Epidemiology and Public
Health, School of Medicine, Yale University, New Haven,
Connecticut
DAVID R. SMITH, Deputy Division Director, Division of Special
Populations and Program Development, Department of Health and
Human Services, Washington, D.C.
STEPHEN B. THACKER, Assistant Director for Science, Center for
Environmental Health and Injury Control, Centers for Disease
Control, Atlanta, Georgia
Consultants
SANDRA KRAMER, General Counsel, The Medical Society of Virginia,
Richmond
ADAM YARMOLINSKY, Provost, The University of Maryland, Baltimore
County
v
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Chairman's Preface
rid
l he topic of medical professional lia-
bility has been of great concern to the Institute of Medicine (IOM) for
more than a decade. In 1975 the TOM was poised to make its own
examination of what then was called a "crisis" in medical care brought
about by medical malpractice insurance difficulties. But events were
outracing the effort; in particular, a number of state legislatures were
moving to ease the burden of lawsuits and thereby hold insurance
premiums in check. The focus of the 1978 TOM study became, as its
report title stated, Beyond Malprc~ctwe: Compensation for Me~zeal Inju-
rzes.
Nearly ten years later the TOM was approached by the American
Academy of Pediatrics to examine a different part of the medical profes-
sional liability spectrum: whether access to health care for infants and
children was being compromised. The TOM conducted an extensive
evaluation of the proposal, including a canvass of local and state legisla-
tors and representatives of special interests involved in matters of
professional liability. From this examination it became obvious that the
current liability situation, apparently acute even after a decade of
prodigious efforts to reform tort law, merited a closer look.
Many studies had charted claims frequency and severity, rising insur-
ance premiums, and other possible causes of the problem, but little
scholarly notice had been taken of the effects of the problem on the
delivery of care or of the policy implications of these findings. The TOM
believed that it was important to make an extensive appraisal of exist-
ing data on medical professional liability available to policymakers.
vii
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VIii PREFACE
To conduct this study, the IOM assembled an interdisciplinary com-
mittee of 15 people with expertise in obstetrics, pediatrics, family and
general medicine, diverse areas of law, medical ethics, health services
research, insurance, economics, nursing, and public policy. Consistent
with usual IOM practice, these persons were not appointed as "represen-
tatives" but rather as distinguished experts who were familiar with the
views of diverse constituencies yet not beholden to them. For this reason
no specific representative of any professional association, trade associa-
tion, or advocacy group served on this committee. The committee made a
concerted effort to take the views of these parties into account, while at
the same time consistently and repeatedly reminding itself that its
purpose was to serve the public interest and the concerns of patients.
Originally, mindful that other studies were examining medical mal-
practice issues and the tort system more broadly, the TOM charged this
committee with examining the effects of medical professional liability
on the delivery of maternal and child health care. However, early in its
deliberations the committee decided to narrow its scope even further,
focusing exclusively on the effects of medical professional liability on
delivery of and access to obstetrical care. There were several reasons for
this. First, the committee was committed to investigating how professio-
nal liability concerns are changing patterns of health care delivery and
affecting access to care. Preliminary evidence available to the commit-
tee indicated that obstetrical providers, compared with colleagues in
most other specialties, appeared to be affected disproportionately. Sec-
ond, the committee was of the opinion that in the child health arena
product liability issues (related primarily to vaccine injuries) over-
shadow professional liability issues to such an extent that it did not
seem appropriate to go beyond obstetrics in this study. Finally, the
committee believed from the beginning that the issues posed by profes-
sional liability in obstetrics in some ways could be representative of the
issues posed by professional liability concerns to the health care system
as a whole. By analyzing this one subsection ofthe health care system in
detail, the committee hoped to make a contribution to the understand-
ing of the overall problem, although the reader will note that care was
taken to restrict recommendations to the obstetrical area.
To pursue its task, the committee commissioned more than 20 papers
by distinguished experts in various fields, commissioned 3 surveys to
gather new data, and reviewed more than 50 surveys bearing on the
medical malpractice problem in obstetrics. In addition, it held an inter-
disciplinary research symposium on June 20, 1988, with Secretary of
Health and Human Services Otis R. Bowen, M.D., as the keynote
speaker. The commissioned papers, which served as background for the
committee's deliberations, will be published by the National Academy
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PREFACE iX
Press as a companion volume to this report under the title Medical
Professional Liability and Obstetrical Care: Volume II, An Inter-
disciplinary Review.
It is customary for TOM committee members to both contribute to and
profit from the very process of interrelating among the various disci-
plines, perspectives, and points of view usually represented. ~ must
extend a special vote of thanks to our committee members who worked
with each other across their divergent disciplinary concerns. No one
could have asked more of a committee than this one gave to its task.
I want to thank Sam Thier, who helped us from the project's initiation
to its conclusion. Enriqueta Bond, who served as the division director,
helped us launch the study through its initial phase; subsequently,
Marian Osterweis took Queta's place in helping the committee and staff
director in a variety of ways. Adam Yarmolinsky, a Tong-time member of
the TOM, helped us informally but generously at various times during
the study, even leading the group through one meeting on the thorniest
legal matters.
I must, however, reserve my greatest expression of thanks and admi-
ration (an expression that I know is shared by my colleagues on the
committee) for Victoria Rostow, who saw the project through from begin-
ning to end as the staff director. Her intellectual and substantive work
was invaluable; she did a superior job.
On behalf of the committee, I would like to thank the various re-
viewers of the manuscript; their efforts significantly improved the re-
port.
Finally, I would like to thank Helen Schindler for her faithful and
proficient handling of the manuscripts.
RoGER J. BULGER
Committee Chairman
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Contents
1. Summary of Conclusions and Recommendations
Maternity Care in the United States...........
· -
·:
3. The Effects of Medical Professional Liability on the
1
.14
Availability of Obstetrical Providers 35
4. The Impact of Medical Professional Liability
on the Provision of Obstetrical Care to Poor Women
and Women Served by Medicaid. .
5. The Effects of Medical Professional Liability
on the Practice of Obstetrics .............
6. Obstetrical Malpractice Insurance . .
7. The Legal System: The Committee's Findings and
Proposals for Change..........................
S. Principal Findings and Recommendations.
Glossary.
Bibliography
.54
.73
.92
.125
.147
.157
.166
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xii CONTENTS
APPENDIXES
A. Summary of Methodology Used in Studies
of Changes in Obstetrical Practice .. ....
B. Summary of Study Results Regarding Changes
in Obstetrical Practice....................
Summary of Study Results Regarding Professional
Liability, Family Practitioners, and Rural Areas
D. State and National Liability Surveys Summarized.
E. Survey of Selected Risk Management Activities ....
F. Risk Management Activities and Experience
Rating Policies of Selected Malpractice Insurers.
G. Possible Modifications to the Virginia Neurological
Birth-Related Injury Compensation Act ........
Members of the Committee
Index .....
.187
.197
.206
.212
.216
· -
.218
.226
....... 228
.
.233
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Medical Professional Liability
and the Delivery of
Obstetrical Care
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