Obstetric malpractice suits: facts vs. myths
What are the medico-legal realities of obstetric practice and how do they impact the provision of obstetric care? There is a great deal of misinformation on this topic propagated by homebirth advocates. Let's look at the reality.According to James M. Shwayder, MD, JD, Liability in High-Risk Obstetrics, in the Obstetrics and Gynecology Clinics of North America:
Litigation centers on errors of omission or commission. Thus prime areas for obstetrical litigation comprise the following:Three factors jump out at the reader:
1. Errors or omission in antenatal screening and diagnosis
2. Errors in ultrasound diagnosis
3. The neurologically impaired infant
4. Neonatal encephalopathy
5. Stillborn or neonatal death
6. Shoulder dystocia, with either brachial plexus injury or hypoxic injury
7. Vaginal birth after cesarean section
8. Operative vaginal delivery
9. Training programs (Resident supervision markedly impacts litigation exposure. Increased used of nurse midwives and nurse practitioners may increase ones liability exposure.)
1. Of the 9 most common reasons for obstetric malpractice suits, 6 allege failure to perform a C-section or failure to perform a C-section sooner.
2. Fully 8 out of 9 of the most common reasons allege failure to use more technology or to properly interpret the technology that was used.
3. Supervision and backup of other providers is a significant source of obstetric malpractice claims.
Not surprisingly, therefore, the recommendations for avoiding obstetric lawsuits include:
Antenatal screening and diagnosis
ACOG now recommends offering antenatal screening for chromosomal abnormalities to all pregnancy patients regardless of age. In addition, the broader availability of nuchal translucency screening establishes a standard of care in which most patients should be offered the opportunity for first trimester screening. A physician failing to offer patients such diagnostic testing is at risk for suit...Antepartum fetal assessment
High-risk pregnancies require antepartum fetal surveillance. Fetal heart rate monitoring, ultrasound surveillance, amniotic fluid volumes, Doppler studies, and cordocentesis are appropriate in pregnancies complicated by conditions such as intrauterine growth restriction, twins, diabetes, hypertension, severe preeclampsia, and sensitization, among others. Guidelines for appropriate use establish an accepted standard of care. Deviating from these guidelines requires substantiated decision making; otherwise, physicians are at risk of a malpractice suit in the event of an adverse outcome.Intrapartum liability
Obvious liability lies with an adverse fetal or neonatal outcome. Intrapartum management undergoes close scrutiny. The most devastating outcomes,and thus costly awards, center on neurologically impaired infants and babies with permanent neurologic deficits after shoulder dystocia.Neurologically impaired infants
It is clear that careful attention to labor progress and fetal status, including adequate documentation, enhances defensibility. Intrapartum fetal heart rate changes must be recognized and responded to appropriately. Prompt intervention and operative delivery, if indicated, minimize allegations of negligence.Shoulder dystocia
Shoulder dystocia is an infrequent, and often unpredictable, nightmare for the obstetrician. However, the law evaluates whether the complication was foreseeable and, if not, whether appropriate maneuvers performed. Recognized risk factors include a prior pregnancy complicated by shoulder dystocia and resultant Erb’s palsy, macrosomia, and a midpelvic operative delivery in fetuses with an estimated weight over 4000 grams. An estimated fetal weight over 5000 grams in nondiabetic pregnancies and over 4500 grams in diabetic pregnancies has been offered as justification for a primary cesarean section. Thus, a physician who overlooks the prior obstetrical history, does not estimate the fetal weight in labor, or who pursues a midpelvic operative delivery in larger infants subjects him or herself to a claim of negligence.Vaginal birth after Cesarean section
Vaginal birth after cesarean section has come under great scrutiny. It is a safe alternative in well-selected patients delivering in hospitals with appropriate resources. However, recognized risks and the dire consequences have prompted some states to impose practice guidelines for VBAC. Physicians should document discussions of the risks and benefits of VBAC and the hospital's capabilities, with signed patient consent. Immediate physician availability and operative capabilities are required. If this cannot be offered, then the patient should be transferred to a facility with these capabilities.Supervision of midwives
Certified nurse midwives often have independent practice authority. However, collaborative agreements may be required to independently prescribe medications. Written protocols, including scope of practice and referral guidelines should be in place and carefully followed. Hospital protocols and guidelines often dictate the level of supervision and consultation required. A physician employing a midwife is liable for any acts under the doctrine of respondeat superior. Vicarious liability occurs as it would for an employer liable for the wrong of an employee if it was committed within the scope of employment. Thus, guidelines and protocols must be followed to maintain defensibility of a case.I have highlighted some of the legal requirements of obstetric practice. The justice system does not consider these tests, techniques and procedures to be discretionary. Any doctor who ignores them or does not use them can easily be charged with negligence.
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