One of most commonly cited barriers to improving maternity care is the risk of providers and hospitals being held liable for bad outcomes. Whether it is reining in overuse of tests and procedures, honoring women’s preferences, or increasing interdisciplinary collaboration, good ideas often cannot move forward once the issue of liability is raised.
If we cannot make progress toward more evidence-based, woman-centered care because of liability concerns, then the liability system is functioning poorly. But what are the aims of a high-functioning liability system? Is it just to avoid lawsuits and hold liability insurance premiums down?
In our new report, Maternity Care and Liability, we hold 25 possible liability reforms up to a framework that addresses the needs and interests of all of the system stakeholders: those who deliver care, those who pay for care, and most importantly, the women and newborns who receive care. We developed this framework based on maternity care and liability studies and with the input of clinicians, legal scholars, consumer advocates, policy makers, and others. For each possible reform, we asked whether it does or would likely:
- promote safe, high-quality maternity care that is consistent with best evidence and minimizes avoidable harm
- minimize maternity professionals’ liability-associated fear and unhappiness
- avoid incentives for defensive maternity practice
- foster access to high-value liability insurance policies for all maternity caregivers without restriction or surcharge for care supported by best evidence
- implement effective measures to address immediate concerns when women and newborns sustain injury, and provide rapid, fair, efficient compensation
- assist families with responsibility for costly care of infants or women with long-term disabilities in a timely manner and with minimal legal expense
- minimize the costs associated with the liability system
The proposed framework has the potential to move discourse and policy forward. When options for reform are held up to criteria in the framework, many that have been widely implemented do not appear to meet any of the criteria. Most notably, the best available evidence shows that tort reforms fare poorly against these aims, despite the fact that they are the most widely advocated and enacted liability reforms.
On the other hand, various reforms have the potential to be win-win-win solutions for women and newborns, providers, and payers. Strategies are needed both to prevent harm and ensure that it is rare and to respond appropriately to harm or claims of harm when they occur. For preventing negligent injury and related lawsuits, these reforms include rigorous quality improvement programs and shared decision making initiatives. A series of recent reports clarifies the “business case” for quality improvement initiatives: successful programs with strong leadership are achieving better care, better health outcomes, and rapid substantial declines in liability claims, payouts, and premiums. Among redress approaches, disclosure and apology programs were the most promising, but have not yet been evaluated in maternity care. The report includes summary tables with the full list of more promising and less promising strategies assessed and their demonstrated or plausible impact on the various areas addressed in the framework.
To achieve the high-performing maternity care system that stakeholders need, we cannot allow longstanding liability concerns to continue to rankle. By seeking guidance from the best available evidence about the nature of liability problems in maternity care and the effectiveness of possible solutions, we can move constructively beyond belief and entrenched positions. It is time to pilot and evaluate the most promising strategies and scale up those that are effective, beginning with routine maternity care quality improvement initiatives. They have the potential to transform the quality and value of maternity care, and to ensure that maternity care work offers the joy and honor that draws talented, passionate individuals to the profession and keeps them caring for women, babies, and families.
For the full report, a set of ten fact sheets, links to three related open-access Women’s Health Issues articles and an invited commentary from legal scholars Sara Rosenbaum and William Sage, and other resources, please visit http://transform.childbirthconnection.org/reports/liability/.