The current professional liability system for maternity care poorly fulfills its intended objectives and causes numerous unintended negative consequences.
Inefficient and ineffective for addressing negligent care
Claims are filed on behalf of just a small fraction of patients who sustain negligent injury. On the other hand, in many cases claims are filed because of a bad outcome even though there was no negligence. Of filed claims, only a small proportion result in awards, usually after significant delays. Awards generally fall far short of compensating injured parties adequately for damages. At great cost, the legal system thus fails to assist most women and newborns who sustain negligent injury.
Serves as a proxy for an absent social program for neurologically impaired infants
Just a small proportion of cases of cerebral palsy can be attributed to intrapartum events. Nonetheless, a neurologically impaired infant is the most common primary allegation of obstetric legal claims. Nearly all states lack a system for assisting families with costs of caring for neurologically impaired infants without resorting to the tort system. The legal system is an inappropriate solution to families’ need for help with expenses in the absence of negligent injury and a wasteful solution in the face of negligent injury.
Lack of transparency results in dearth of data on adverse events and near misses
The current tort system discourages providers from reporting adverse events and ‘‘near misses’’ owing to fear of litigation, making it difficult to learn from these events. The focus on individual blame discourages a more constructive systems perspective with appropriate assignment of accountability, which often partially or fully rests with systems. Although the largest hospital system in the country concluded that ‘‘most money currently paid in conjunction with obstetric malpractice cases is the result of actual substandard care resulting in preventable injury’’ (Clark et al., 2008), many obstetric providers have been unwilling to embrace the need for quality improvement.
The lack of reporting of adverse events leads to a dearth of solid data on their type, frequency, and severity for actuarial analysis of perinatal risk. Insurers have thus been unable to set premiums on the basis of actual risk, contributing to unpredictable fluctuation in premium levels.
Fear of litigation negatively impacts maternity care quality and costs
As a small fraction of cases of negligence are brought before the legal system, and even fewer receive payments, feared impact seems to exceed actual impact, but is nonetheless deeply unsettling. Defensive medicine increases health care costs and may perversely increase the risk of harm, for example, through increased use of cesarean section and decreased VBAC. Liability pressure may affect the maternity workforce, by influencing providers’ decisions about practice locations and populations.
Scientific and legal system standards of evidence not aligned
Although current practice is extremely variable and may not reflect best available evidence, the legal system upholds as a standard for practice what a reasonable clinician would do in a specific situation. When the weight of the best available evidence clarifies that a change in practice standards is needed, the legal system impedes quality improvement by providing incentives to adhere to obsolete patterns of care. Further, this system relies extensively on opinions of expert witnesses, although expert opinion is considered to be the lowest level of evidence because of its high potential for bias.
- Liability-related goals include minimizing avoidable harm through increased safety and maternity care quality, appropriately supporting women and newborns who sustain negligent injury, obtaining good value from resources directed to safety and liability, and decreasing maternity professional fear and discontent.
- There is alignment between liability system goals and system results.
- All providers of maternity and newborn care have access to affordable professional liability insurance coverage.
Clark, S.L., Belfort, M.A., & Dildy G.A., et al. (2008). Reducing obstetric litigation through alterations in practice patterns. Obstetrics & Gynecology, 2008, 112, 1279–1283.