Improved Functioning of the Liability System: Recommendations and Action Steps

1. Improve the collection, analysis, and dissemination of aggregated occurrence data for quality improvement and actuarial setting of premium rates.

  • Adopt widely and continue to improve the newly developed uniform Perinatal Safety Event Reporting Form (PSERF) administered by the AHRQ, to routinely collect and report uniform data on rates of adverse events in maternity care, and to enable more precise actuarial analysis.
    • Encourage maternity care facilities to join AHRQ Patient Safety Organizations (PSOs), through which they can collect and report their de-identified data using the AHRQ common format PSERF.
    • Expand the AHRQ common format PSERF to include reporting of perinatal safety event data stratified by setting and provider type, to provide data on the outcomes of out-of-hospital maternity care and maternity care by non-physician providers for actuarial analysis and to foster the fuller integration of these forms of care into the maternity care system.
    • Expand the AHRQ common format PSERF to include data on outcomes of practices such as assisted vaginal birth, VBAC, and vaginal breech and twin births to provide data on outcomes of these practices for actuarial analysis and encourage expanded access to these services.
    • Convene relevant stakeholders to work with AHRQ and its PSOs to develop additional needed data points for inclusion in the PSERF.
    • Engage leaders from the Insurance Services Office, a third-party insurance industry service organization that publishes industry-wide forms and disseminates data to the insurance community, to adopt the PSERF and analyze and report data collected with it.
    • Engage leaders from the National Practitioner Data Bank, and the Healthcare Integrity and Protection Data Bank, a national collection program, to adopt the common format PSERF. The National Practitioner Data Bank and the Physicians Insurance Association of America should collaborate to harmonize their data with the PSERF project, to ensure that relevant clinical data are included with data on volume, type, and award amount for perinatal claims, and to make data freely available for quality improvement activities and actuarial analysis by insurers.
  • Create a national, standardized database of maternity care outcomes and adverse events that is risk adjusted, as well as stratified by facility and provider type. Make these valid, transparent data available to the insurance market to set adequate premiums for maternity care coverage at different system levels, and to inform facility-based risk reduction and risk management programs. Frame this strategy within interoperable health IT to foster ease of collection, reporting, analysis, and feedback, and to provide denominators to measure incidence. (See the Blueprint section on Development and Use of Health Information Technology.)
  • Encourage malpractice insurance carriers with maternity claims data to collaborate in a comprehensive analysis of their pooled closed and open claims, even if they no longer offer this coverage, and contribute the results to a publicly available national dataset, that is risk adjusted as well as stratified by facility and provider type.

2. Implement continuous quality improvement and clinical risk management programs to identify, prevent, and mitigate adverse events in maternity care.

  • Insurance leaders and risk management experts should partner with maternity care facilities to develop, implement, and share results—including impact on health outcomes and liability-associated expense—of risk retention programs. Encourage joint underwriting carriers to fund and develop programs based on aggregated uniform outcomes data.
  • Encourage clinical and insurance leaders and third-party payors to support and encourage development of premium reduction incentive programs in exchange for completion of meaningful perinatal safety and quality improvement activities. State insurance regulators should require the participation of insurers in such programs.
  • Legislate a ‘‘safe haven’’ for providers who follow established standards so that they are protected from legal action when up-to-date guidelines supported by high-quality evidence are followed.
  • Maternity care facilities, self-insured health care systems, and hospitals that share/pool risk should widely adopt system-oriented patient safety and quality improvement programs, and measure and report their experiences with malpractice claims and payments.
  • The quality improvement and patient safety bodies of maternity professional organizations should collaborate to create and make available a central database of maternity care quality improvement programs in the United States that are implementing, evaluating, reporting, and publicizing their results.
  • AHRQ and foundations should support priority comparative effectiveness research to evaluate strategies to improve the quality of maternity care and reduce liability:
    • Evaluate the impact of laborist models on access to skilled labor support, perinatal outcomes (e.g., VBAC, vaginal breech and twin birth, external version), reduction of adverse events and liability experiences, mother/family and clinician satisfaction, and maternity costs. (See the Blueprint section on Clinical Controversies.)
    • Compare the impact of different provider models of care, including physician–midwife teams and specialist teams on costs, quality, and outcomes of care, including liability experiences and longer term postdischarge outcomes.
    • Carry out adequately funded and powered studies of home birth with appropriate comparison groups, attention to planning status, and analysis of referral and transport cases. (See the Blueprint section on Clinical Controversies.)
    • Compare different models of regional coordination, including evaluation of relationships between community hospitals and academic medical centers, on processes, costs, and outcomes of care, including liability experiences.
  • Incorporate error reduction, patient safety, evidence-based practice, and quality improvement in maternity professional education curricula. Implement integrated coeducation of medical, midwifery, nursing, pharmacy, and other health care students to increase understanding of differing scopes of practice, improve communication skills, and provide team experience in maternity care. (See the Blueprint section on Scope, Content, and Availability of Health Professions Education.)
  • Make obstetric emergency drills in all delivery settings a regular component of continuing education to improve team performance during maternal and newborn emergencies. Require demonstrated participation in emergency team training drills for hospital credentialing and maintenance of certification. (See the Blueprint section on Scope, Content, and Availability of Health Professions Education.)
  • Implement evidence-based checklists and other tools within health care organizations to enhance clinical decision making in maternity care.
  • Evaluate the impact of policies within hospitals and health systems that provide better rest for maternity providers on rates of perinatal harm and near misses, such as limited residency hours and use of birth hospitalists (laborists), including use of midwives as hospitalists for lower risk births.

3. Explore alternative approaches that separate negligence and compensation, compensate patients quickly and fairly, and remove waste from the liability system.

  • Support legislation that promotes specialized health courts with judges and panels skilled in negligence reviews as an alternative to the current tort system.
  • Pilot, evaluate, and share results of ‘‘enterprise liability’’ programs that relocate responsibility from individuals to systems.
  • Pilot, evaluate, and share results of model nofault programs that provide rapid payments to families for health care and special medical needs, similar to systems in Sweden and New Zealand. Build on lessons learned in Virginia and Florida programs for neurologically impaired newborns.
  • Pilot, evaluate, and share results of methods of alternative dispute resolution including mandatory binding arbitration/mediation, and early resolution programs.
  • Enact ‘‘apology laws,’’ which allow providers to discuss an adverse outcome and express regret to a patient while excluding the apology as admissible evidence of negligence.
  • Ensure that all maternity care professional organizations jointly define and publish standards for expert witnesses.
  • Engage two crucial stakeholder groups to leverage their power in taking a more active approach to tort alternative reforms: state regulators to work on behalf of those who receive and provide care, and public and private purchasers, who indirectly absorb costs of the liability system through their payments to health professionals and facilities.

4. Align legal standards with objectives for a high-quality, high-performance maternity care system.

  • Lobby the legal community to develop, test, and move toward evidentiary approaches based on best available scientific evidence rather than the traditional custom-based standard of care that courts use to decide liability in medical malpractice law.
  • Fully transition the health care and legal systems to ‘‘patient’’ legal informed consent standards that disclose what a reasonable patient wants to know, in contrast to the increasingly obsolete clinician standard relying on clinicians’ judgments about what patients need to know, as childbearing women generally desire and often do not have a high level of knowledge about benefits and harms of their care options.
  • Create state sovereign immunity or liability coverage programs for health care provider education.

Lead Responsibilities

There should be multi-stakeholder collaboration to improve the functioning of the liability system. The relevant stakeholders for improving the liability environment and the quality of maternity care should include patient safety and health care quality organizations; maternity health professional organizations; hospitals and health systems; AHRQ; state insurance regulators; policy makers; key legal, liability, and insurer organizations; and consumers and advocates.

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