Medical Professional Liability and the Delivery of Obstetrical Care Volume II, An Interdisciplinary Review (1989) / Chapter Skim
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The Shadow of the Law: Jury Decisions in Obstetrics and Gynecology Cases
The Shadow of the Law: Jury Decisions in Obstetrics and Gynecology Cases
Pages 161-193
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From page 161... ...
was so much lower "There was practically no malpractice There was no Medicaid, no Medicare, no health maintenance organizations, no preferred provider organizations, no diagnosis-related groups, and most patients paid in cash These were the good old days, but were they really any better? "3 At least in terms of medical malpractice, Vander Kolk, like many of his colleagues, thinks things are far worse today than in the good old *
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From page 162... ...
As Harold Schulman described it in his presidential address to the New York Obstetrical Society, "Malpractice litigation has profoundly influenced our professional lives. It has become the single most talked about topic among physicians."6 In 1985 William Mixson, then president of the American College of Obstetricians and Gynecologists, said that malpractice was the most serious problem facing obstetricians and gynecologists.7 The same conclusion was reached by the American Medical Association's ObstetricsGynecology Council on Long-Range Planning and Development: "This crisis is perhaps the most potent environmental factor currently affecting obstetricians and gynecologists."8 Although many medical commentators concede that malpractice does occur, the majority attack the tort system as a means of handling the problem.
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From page 163... ...
that they are "unfairly at risk of being sued."~5 AMA counsel Johnson has said that it is "the unpredictability of the system the vagaries of juries and the uncertainty about what is 'fault' and when fault 'causes' harm to an already ill or injured patient—that makes it hard for physicians to know what is 'legal' negligence and substantially undercuts the system's deterrent effect." In his view, "there are wide, irrational variations in both findings of liability and the amount of damages for similar cases."~7 Despite the fact that jury verdicts in medical malpractice cases are roundly criticized, there have been surprisingly few studies of what actually happens in malpractice cases that go to court and virtually no studies of cases involving obstetricians and gynecologists. Previous studies have addressed malpractice jury verdicts only peripheral.
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We draw on studies in the medical literature and in the insurance claims literature for estimates of the amount of medical error causing patient injury and the resulting number of patient claims against health care professionals. These estimates are supplemented by estimates of errors and claims we have made using figures on hospital
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There have been few attempts to discern why and how particular medical errors are transformed into claims by patients against physicians. What we do know suggests that most errors resulting in patient injury do not lead to malpractice claims.
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From page 166... ...
Similarly, a national study by the National Association of Insurance Commissioners found that only 46 percent of malpractice insurance claims were settled with a payment.38 In Texas only 21 percent of the obstetrics and gynecology claims were settled with a payment; for all malpractice claims, the figure was 20.3 percent.39 Using these scattered examples, we begin to see the dispute resolution pyramid taking shape.
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From page 167... ...
Looking at three New York counties in our study, for instance, we find that in 1984 there were 476 medical malpractice cases filed in Kings County, 490 filed in New York County, and 35 filed in upstate Monroe County, which includes Rochester (data provided by State of New York, Office of Court Administration, 19881. Surely, there were more medical errors and more malpractice claims than court filings in these three counties.
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168 MEDiC~ P~FESSiONAL If: VOICE ~ TABLE 1 Selected Sites and Total Number of Civil Jury Verdicts No. of County Court Years Verdicts Maricopa, Ariz.
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. take place."43 We were interested in determining the shape of the shadow cast by medical malpractice jury verdicts over other phases of the dispute process involving medical error.
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Second, we provide more detail, looking at plaintiff success rates, severity of injury, cause of injury, and size of awards for the different types of obstetrics and gynecology cases. Throughout our discussion, we refer to our background data on total civil jury verdicts to provide a context for the information on malpractice verdicts.
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% of All Verdicts (N) Medical Malpractice Maricopa, Ariz.
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. Table 2 also shows that medical malpractice jury cases were not numerous during the early 1980s.
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When we looked at all civil jury verdicts involving money damages, we found that plaintiffs tended to be successful more often than not, with an overall success rate of 57 percent.47 Table 3 presents data on plaintiff success rates for all civil jury verdicts, for medical malpractice jury verdicts, and for obstetrics and gynecology jury verdicts. The overall success rate for each county was calculated from the frequencies in Table 1 (the number of jury verdicts in which the plaintiff was awarded at least $1 divided by the total number of verdicts)
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174 MEDICAL PROFESSIONAL LIABILITY: VOLUME II TABLE 3 Plaintiff Success Rates in Selected Counties, 1981-1985 Medical County Overall Malpractice Ob-Gyn Maricopa, Ariz. 58.4 28.0 10.0 Alameda, Calif.
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When we compare obstetrics and gynecology success rates with overall medical malpractice success rates, we find that in 18 of the 40 counties the obstetrics and gynecology success rate was higher. In 11 of those 18 counties, however, there were fewer than 10 obstetrics and gynecology cases.
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. There was, again, a large drop to the second largest proportion in this instance abortion, which also made up a larger proportion of successful cases (11.9 percent)
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Such contrasts indicate that there were important differences in plaintiff success rates for the respective types of obstetrics and gynecology cases; these differences will be discussed in detail later. Severity of Injury The severity of the patient's injury was assessed using the nine-point severity scale that has been used in a number of malpractice studies since the mid-1970s.48 Table 4 presents a rough outline of the severity scale and some examples.
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. We can see this in the difference between the success rates (how often plaintiffs won)
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repeatedly in the malpractice literature 49 The most frequent cause of obstetrics and gynecology injuries was related to general medical management (the overall planning and handling of patient care, including cases involving the use and management of medications, failure in nursing management, and failure in physician planning and management) Injuries caused by a specific procedure or treatment (e g, a surgical procedure)
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From page 180... ...
Juries, it seems, were more likely to decide in favor of the plaintiff when the injury was caused by a specific procedure or was related to general medical management. The plaintiff success rates for these two categories were, respectively, 38.1 percent and 39.7 percent.
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Most of the injuries brought before juries were alleged to have been caused by a specific procedure or by general medical management. The largest proportion of injuries involved the adverse
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Disaggregating the obstetrics and gynecology verdicts by type of case and then examining cause, class, and severity of injuries together with success rates and awards for each type of case provide the means to explore the shadow's shape in more detail. Table 5 presents data on number of verdicts; plaintiff success rate; cause, class, and severity of injury; and awards for the seven types of obstetrics and gynecology cases.
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From page 183... ...
of obstetrics and gynecology verdicts and showed one of the highest success rates and award structures. The plaintiff success rate for labor and delivery cases was 44.7 percent, compared with 36.8 percent for all obstetrics and gynecology cases.
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184 cd co v a, v ·_I o c)
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Tubal Ligation Tubal ligation cases had one of the lower plaintiff success rates, at 25 percent, and the lowest award structure. The 25th percentile was only $7,770, and the median was by far the lowest—$37,800, about one-tenth the overall median.
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in the tubal ligation cases involving permanent injury or death. Cancer Cancer cases had one of the highest plaintiff success rates (40.6 percent)
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For cancer cases, class 2 was predominant—incomplete treatment or diagnosis; these cases made up 84.6 percent of the successful cancer cases. At the other extreme were the hysterectomy and tubal ligation cases, which had the lowest award structures and Tow plaintiff success rates, even when the injuries were more severe.
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These findings suggest that it is not the new technologies on the frontiers of medicine that were behind high awards or high plaintiff success rates but problems involving older, established technologies. Rather than reaction to the risks of the new, we may be seeing instead a lack of tolerance for mistakes in the use of the old and well established, especially in cases in which the injuries are more severe.
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. This compares with a success rate of 44.7 percent for labor and delivery cases generally and a rate of 36.8 percent for all obstetrics and gynecology cases.
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Our findings describe a very different shadow being cast by obstetrics and gynecology jury verdicts. Only a very small proportion of injurycausing medical errors ever leads to a claim against the physician, and fewer result in ajury trial.
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From page 192... ...
1986. Medical Malpractice: Case Study on Arkansas.
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From page 193... ...
1987. Medical Malpractice Statistics Reports.
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