The field of obstetrics sees more malpractice claims than any other field behind neurosurgery. The stakes are high, the medicine and surgery complex. Rates of pregnancy-related complications and deaths have continued to rise in the U.S., and more than half of those cases are believed to be preventable through better medical care.
But it can be difficult to bring malpractice claims on the mother’s behalf, and it’s debated by counsel on both sides whether the process of professional review in medical cases does more harm or good.
From 1993 to 2014, the Centers for Disease Control reported a 200 percent increase in severe maternal morbidity. The agency defines severe maternal morbidity as unexpected outcomes in labor and delivery that can lead to short or long-term health complications for the mother. Though the agency noted in its findings that causes are not clear, contributors may be increases in maternal age, higher rates of pre-existing obesity and medical conditions.
“Even in 2018 we all have to remember that childbirth is still not a risk-free process, and pregnancy is not a risk-free condition,” Wheeler Trigg O’Donnell partner Kevin Kuhn said. “Medicine still has not been able, nor will medicine be able to, make it entirely risk-free.”
But an analysis of 108 pregnancy-related deaths from 1995 to 1999 in North Carolina found that 40 percent of those deaths, mostly caused by hemorrhage and complications of chronic illness, were preventable. Deaths caused by amniotic fluid embolism and more rare genetic predispositions to disease, triggered by pregnancy, were not considered preventable. A study in Obstetrics and Gynecology medical journal concluded from the North Carolina review that these deaths could have been prevented through improved medical care. The CDC Foundation reviewed a wealth of data on pregnancy-related deaths from four state review committees, including Colorado. It found that 58.9 percent of deaths were preventable.
A study published in 2015 found that the U.S.’ maternal mortality rate has steadily risen since 1990, compared to 13 other European nations in which those rates have decreased. At 26.4 deaths per 100,000 live births, the U.S. has the worst rate in the developed world. The CDC’s National Center for Health Statistics called for an additional question on maternal mortality to death certificates, but states have been slow and inconsistent in implementing it. As a result, the U.S. has not provided national data to international entities like the Organization for Economic Co-operation and Development since 2007. Authors of an additional study published last year in O&G called it an “international embarrassment.”
Denver Trial Lawyers partner David Woodruff said that due to caps on non-economic damages in Colorado, it’s difficult for a woman who’s been injured in childbirth to even find a lawyer to take the case unless there is injury to the baby.
“There’s just not enough medical malpractice lawyers that are willing to take the risk because there’s not enough recovery,” Woodruff said.
A study published in 2009 in the journal Medical Care looked at the correlation between rising professional liability insurance premiums for obstetricians and increased late preterm inductions (34-36 weeks) over a period of 12 years and found that the near doubling of premiums was associated with the increase in inductions, which approximately tripled.
The drug Pitocin is used to induce labor. From 1990 to 2010, the rate of induction of labor went from 9.6 to 23.8 percent. The CDC report found that heart muscle disease (cardiomyopathy), cardiovascular complications and hemorrhage were the leading causes of death in these cases. One of the most common injuries is uterine atony, a condition where the uterus has been overworked and stressed and bleeds out. Usually the uterus must be removed to stop bleeding.
If injuries sustained during labor and delivery lead to a loss of fertility, recovery might be made to cover costs associated with adoption and surrogacy. But for women with other complications or in the event of a mother’s death, Woodruff says that’s not usually the case.
A process called professional review makes confidential reports and findings of medical cases and patient care. The reviews are done on all sorts of cases, not just ones in which a patient has complications or dies. But especially in cases with unfortunate outcomes, Woodruff said communications and findings from those reports are crucial.
“From what we see, it is used as a tool, at least in the litigation context, to conceal facts and prevent injured people from learning about what truly happened to them and why,” Woodruff said.
Colorado’s professional review law defines “record” as essentially any communication between individuals in the committee and during proceedings as well as reports and assessments of the patient care under review.
The statute, which is scheduled to sunset at the end of next year, exempts from that definition communication by “any person that are otherwise available from a source outside the scope of professional review activities, including medical records and other health information.” But Woodruff said that the process is often used as a shield to obscure the facts.
“I’m in a deposition asking [the hospital representative] ‘What did you learn about what time the doctor was called, what were the nurses doing?’ Then they say ‘If you learned that during the investigation, you don’t have to answer that question.’ It’s not documented anywhere rather than the peer review file,” Woodruff said.
Woodruff said some judges are less aware of the details in the statute, and that in some cases defense attorneys will label communications confidential that shouldn’t be under the law, and therefore are unable to be used to bring a claim for a patient.
“We see that judges will sometimes just sort of fall for it,” Woodruff said. “We see that some judges are very meticulous and careful and they don’t fall for it, and then we can kind of pierce that veil and we can get the facts themselves.”
Kuhn disagrees. He believes the practice encourages open conversation among health care providers and leads to an overall improvement in patient care.
“The day that we stop protecting peer review is the day we see a screeching halt to our collective societal ability to encourage frank candid discussions among medical providers,” Kuhn said.
COPIC counsel Mark Fogg said the statute clearly outlines that other information and facts outside the review are discoverable, noting that due process is important and the ultimate goal of the professional review process is improving health care.
“The important thing is, from everybody’s standpoint, the patient and the physician, you want an objective, thorough and where appropriate, critical review. You don’t want it motivated by anything other than quality of care,” he said.
Fogg said professional review allows for an individual to come forward with allegations without concerns of retaliation. It also provides other options for education or restriction rather than severe punishment, depending on the case.
A 2009 American Medical Association survey found that more than 30 percent of OBGYNs said their fear of lawsuits led them to perform more Cesarian sections.
In 2013, the U.S. rate of C-sections was 32.7 percent, double the 10-15 percent rate that the World Health Organization set as medically necessary. Fennemore Craig director Barbara Glogiewicz represents physicians and has handled many obstetric malpractice cases. She said claims in OBGYN cases are particularly concerning because of large awards.
Doctors are covered by at least $1 to 2 million in insurance, and premiums have risen for obstetricians.
Though Glogiewicz said most of her clients try not to let a potential malpractice claim influence their decisions, many have seen colleagues go through harrowing lawsuits.
“I think the reality is that when I talk to clients, they say ‘I try to do what’s in the best interest of my patients,’” she said. “There’s always a focus to not practice defensive medicine, but in reality, some practitioners are more liable to recommend a C-section because of risks associated with malpractice claims.”
And though the cap on non-economic damages is low, Glogiewicz believes it’s an important limitation to have in place to balance out the soft cap on economic damages, especially because emotion and sympathy can sway a jury.
“The problem is that’s a train that when it leaves station, nobody knows where it’s going to end up,” she said. “The doctor in court is the one who feels the worst of all. They didn’t go to medical school to hurt people. Reining in emotion is necessary for doctors to get a fair shake.”
— Kaley LaQuea