Study shows fear of lawsuit drives up C-section rates

At ACOG’s annual meeting, Dr. Elizabeth Platz presented a study which demonstrated that fear of lawsuit (and particularly in states that have high lawsuit pay-outs for malpractice during birth) increase the rate of C-sections. Specifically, “for every $10,000 increase in insurance premium there was a 15% increase in the rate of cesarean delivery.”

Whether you like it or not, here’s how insurance premiums work in America — insurance companies are for-profit companies, which means that they’re in the business to make money; this means that if they just break even, they’re not happy. So, they have to charge more than they pay out (not rocket science — this is the way it works in every business, from restaurants to grocery stores to car dealerships — if they don’t make money, they close). This means that if they insure a doctor who ends up costing them a million or two due to a dead or injured baby or mother, then they have to recoup that money somehow. Which means that they have to raise premiums on all doctors they cover. Or, raise premiums on the doctor who got the negative judgment. It’s just like car insurance — you have a car wreck (even if it’s not your fault) or a traffic ticket, or have some other indication that you may cost the insurance company money, or even worse, that you did cost them money, then they will raise your premiums. If you have too many tickets (or pay-outs or settlements), they may even drop coverage. As a driver, that means you aren’t legally allowed to drive, which is a difficult thing; as a doctor, that means you can’t work! Don’t you think that would make you ultra-cautious in attending births? (This doesn’t even take into consideration the human feelings one might have at attending a birth with a negative outcome, whether the attendant was at fault or not. But even if there were no lawsuit, I could see that such a birth could make you err on the side of caution the next time. Just as a mother who had a term stillbirth or intrapartum death might opt for a medically unnecessary C-section to avoid the risk of a repeat of her first birth, a doctor who attended such a woman might be more prone to choose an unnecessarean for the next woman.)

But this can be a thorny problem. I don’t think that doctors should be sued unnecessarily. But arbitrary lawsuit caps may be unjust for victims of malpractice. Most insurance companies will settle most lawsuits, preferring to take the known settlement than the risk of a jury handing down a possibly disastrous multi-million dollar verdict. The amount of money it takes to bring suits to court is also quite high. And although a jury may be legally and technically impartial, they may also be too ignorant (not using the term in a pejorative sense, but objectively) to hand down a just verdict. What if the doctor didn’t do anything wrong, but still got ruled against because of the sympathy factor of grieving parents? I suggest a special medical court that would try medical cases, with the pool of jurors or judges or justices being people with medical knowledge so that they can rightly decide fault. Unfortunately, this might unfairly favor medical personnel (the “old boys’ network” and feeling of shared experience), so it would have to be entered into cautiously, but I think it would work better than the current system. Perhaps some form of arbitration would work, rather than an actual trial.

Regardless, there is now evidence that what we’ve long suspected (though some refuse to admit) is true: defensive medicine is real, and it is driving up the rate of unnecessareans.

My thanks to “Sydney Midwife” for bringing the story to my attention.

8 Responses

  1. Medicial Malpractice suits are very damaging to the U.S. civil court system and insurance companies. True, there are cases were doctors neglect specific issues with a patient, but this is less than 1% of all medical malpractice cases. Let’s hope some tort reform is done in the near future before insurance is too expensive for anyone

  2. Is there a way to see the study without registering?

  3. I’ve been sitting on the link to that study for awhile. It’s a doozy.

    Two things I thought of after reading your post…

    1. Malpractice insurance premiums are strongly influenced by the market. Crappy market, less ROI, higher premiums. It’s not all about lawsuits and payouts.

    2. Regarding erring on the side of caution… in this case, it’s the illusion of caution and the desire for predictability. It’s not actually safer, of course. But at least they can say they did something instead of letting things take their course, right?

    So, yeah. Now we know. Not older, fatter, riskier women. It’s doctors who believe that everyone is out to sue them.

    Sick system.

  4. SettlementLoans… Where did you get your less than 1% figure?

    Perhaps you didn’t read this… http://journals.lww.com/greenjournal/Abstract/2008/12000/Reducing_Obstetric_Litigation_Through_Alterations.14.aspx

  5. “So, yeah. Now we know. Not older, fatter, riskier women. It’s doctors who believe that everyone is out to sue them.”

    1) many people will sue the Doctor as evidenced by the amount of law suits that are out there.

    2) Older women have an increased risk of c-section so do premie moms and mothers with otherr risk factors. So it is not JUST the Doctors are paranoid.

    3) If you were a Doc , you would be doing the same thing. Maybe not when you just get out of school, but after being through the ringer of depositions, you will change your practice and your c-section rate will go up too. Nobody is immune.

  6. 1) many people will sue the Doctor as evidenced by the amount of law suits that are out there.

    I’d love to see your evidence on how many OB lawsuits are filed and how many cases are thrown out. Since you’re on “the inside,” maybe you have access to better info. If you have a minute, will you post the numbers to which you’re referring?

    2) Older women have an increased risk of c-section so do premie moms and mothers with otherr risk factors. So it is not JUST the Doctors are paranoid.

    True. The argument usually used, though, is that there are sooo many old (or fat or special or unique) moms now that a 40%, 50%, 60% or 70% rate is ok.

    3) If you were a Doc , you would be doing the same thing. Maybe not when you just get out of school, but after being through the ringer of depositions, you will change your practice and your c-section rate will go up too. Nobody is immune.

    If all the other kids think it’s ok, I would do it too? Nah.

    What I think you’re saying is that doctors deserve some sympathy, especially those who have endured the deeply personal, grueling and expensive litigation. I agree. But it doesn’t make it ok to personally subject hundred of women a year to unnecessary c-sections, does it? Ethics, anyone?

    Most of the cases reported in the news that get the enormous payouts are malpractice with babies having clearly suffered iatrogenic injury. Every now and then, I read a “should have sectioned to prevent SD” or “should have known the baby would have been big and therefore sectioned” or, basically, should have had a crystal ball and I feel angry at a system and a culture that is so clueless about childbirth. In Pinky-speak, it’s “Bullsh1t.” 😉

    To assume that every doctor will just slip into the typical complacency of refusing to attend VBACs and trying to sell women on planned c-sections for dubious “medical” reasons because that’s what everyone else does doesn’t give the doctors that you work with much credit. What is your opinion on how far it too far? How long should the apologist meme be allowed to snowball before someone calls, well, “Bullsh1t!” on it all, Pinky? What do you think?

  7. Jill,
    You may find this interesting: http://www.womensenews.org/article.cfm/dyn/aid/1858/context/archive

    75% of ACOG members say they have been sued at least once. The amount of lawsuits have not gone up, but the awards have gone up astronomically.
    On a personal note, going through a deposition and/or trial, is very demoralizing. There is no way to describe it unless you go through it yourself. It will change the way you practice.

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