173
THE MALPRACTICE CRISIS: AN ATTORNEY'S VIEWPOINT* STEVEN E. PEGALIS, J.D. Attorney at Law Pegalis and Wachsman, P.C. Great Neck, New York
IN THE EARLY 1960s the perinatal mortality rate was reported at approximately 35-40/1000.1 In the early 1980s the rate has been reported between 10-12/1000 births. Since 1965 the rate has been steadily decreasing in the United States at an average rate of 3.4% per year.2 During this period, advances in obstetrical and perinatal care have included, but not been limited to the following:3,4 greater emphasis on early and continued high risk assessment; increased ability to determine gestational age and growth patterns through the use of sonography; and increased emphasis on maternal health habits such as nutrition, exercise, and avoiding alcohol, drugs, and smoking. Recognition of intrauterine growth retardation as a separate risk entity and the ability to monitor this and other potential problems with continuously improving antepartum modalities such as the biophysical profile. Improved management of obstetrical complications relating to prematurity, including advancements with tocolytic agents; ability to assess fetal lung maturity; the use of steroids to mature fetal lungs; and improved methods to monitor and to manage premature related deliveries. Improved screening techniques and protocols for the identification and treatment of such obstetrical complications as diabetes, toxemia, blood incompatibilities, and other complications. The establishment and regionalization of perinatal/neonatal tertiary care centers with improved methods for transportation. Improved methods of intrapartum surveillance, particularly the refinement of electronic fetal monitoring and scalp pH techniques. Improved techniques for delivery room resuscitation and stabilization of the compromised newborn. Neonatal intensive care units for the management of premature and sick infants, together with continued refinement of techniques for *Presented at a meeting of the Section on Obstetrics and Gynecology at the New York Academy of Medicine on April 18, 1989. Address for reprint requests: Pegalis and Wachsman, P.C., 175 East Shore Road, Great Neck, N.Y. 11023.
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S.E. PEGALIS
stabilizing, ventilating, and monitoring the newborn and assessing and diagnosing abnormalities as they evolve. These improvements in care have been temporally associated with the dramatic decline in the perinatal mortality rate, and as many as 25 to 30 babies per 1,000 births survive where previously they died. In the early 1960s the cerebral palsy rates approximated 2 to 3 per 1,000 births. One of the fears was that the "saving" of lives in the perinatal interval might dramatically increase cerebral palsy rates. Obviously, if only five of 25 babies "saved" from perinatal events were neurologically injured, the cerebral palsy rates might easily double or triple. That has not occurred. Hagberg,5 in a respected Swedish study, noted that the significant gains in the survival of nondamaged infants in the past 25 years were due to improved care during the perinatal period. He stated: "The very active efforts during recent years to prevent brain damage caused by neonatal jaundice, asphyxia, and perhaps also severe birth trauma, have given more profit in the form of undamaged babies than losses in the form of surviving severely disabled children, who would have died with a less active approach of earlier years.... An increased survival of severely brain damaged babies has been postulated, but so far has not been proven from epidemiologic studies ... As a net gain, this decline represents an increased absolute number of non-cerebral palsied children, in spite of a slightly rising incident of cerebral palsy." In the only major American study, the Mayo Clinic reported a progressive decline in cerebral palsy rates for infants over 2,500 grams and essentially no change in the rates for low birth weight children, although the population of high risk low birth weight children has changed from 3 to 4 pound babies to 1 to 2 pound babies.6 Another study concluded that 38% of cerebral palsy children were related to substandard care. Perhaps even more provocatively, that study suggested that protection of the infant's brain against less severe forms of insult could result in reduction of other conditions-for example, perceptual handicap. The authors stated: "There is every reason to believe that in the context of this article, florid cerebral palsy may represent but the 'tip of an iceberg'."7 Other studies8'9 have supported the concept that perinatal events may account for a significant number of children with mental retardation and other cognitive deficits, though the statistical incidence in this regard is far more difficult to establish with precision. The American College of Obstetricians and Gynecologists stated: "Excellence in maternal health care is the foundation for the physical, intellectual, social and economic success of any society. It is the basic determinant of the Bull. N.Y. Acad. Med.
MALPRACTICE CRISIS
MALPRACTICE CRISIS
175
health of future generations".'O This statement, read in context with the aforesaid results of improved obstetrical and perinatal care, would clearly seem reasonable and not at all presumptuous. Therefore, obstetrical and perinatal care providers, from an objective point of view, are arguably the most important of our health care providers. Obstetrical and perinatal care does make a difference; it does influence the outcome. It is directly from this capability that the liability insurance problem for obstetricians has arisen. There is an important added feature: the nature of evolving obstetrical care. The discipline of obstetrics requires the patience to observe a long but normally progressing labor on one end of the spectrum and the capability to react immediately to an unexpected emergency on the other end of the spectrum. It requires that obstetricians keep abreast in a field that is constantly changing. Unlike many other disciplines, obstetricians cannot schedule labor and delivery for convenient times. Most pregnancies end in delivery of a healthy infant, no matter what is or is not done. Therefore, obstetricians, on a daily basis, may be trapped by an erroneous assumption that the pregnancy being managed, on any particular day, will have a normal outcome. The trap is sprung when evolving problems are ignored or the obstetrician is not prepared for the emergency. As such, I believe that the obstetrical liability insurance problem exists for two reasons: The potential for avoidable grievous harm, and a medical specialty in which too many, too often, approach their daily practice with the wrong mindset. What then is the solution? The first prong is what I believe should be the universal mindset of all obstetricians: "We are important." "We make a difference." "It is not easy to practice obstetrics because pregnancy is not a natural phenomena that requires our occasional or passive attention, but rather one that continually requires our attention for at least two patients". The second prong of the solution stems in part from the first-obtaining adequate and affordable insurance coverage. Recognition of often irrational and inequitable medical compensation/reimbursement rates and the unique insurance risk that obstetricians have form the basis for more equitable insurance ratings. Obstetricians have a legal obligation to at least two patients and can be sued by either. There are only a limited number of available places in medical school, residency programs, and on hospital staffs. Each medical specialty plays a part in the total picture of covering the health care needs of patients. The total income for all physicians can easily fund an affordable malpractice system. I am not talking about "good" doctors paying for "bad" obstetricians. I am Vol. 67, No. 2, March-April 1991
176
S.E. PEGALIS
talking about adjustments in reimbursements and insurance rating systems that should be made and can be made to "solve" this insurance problem. There are 14 classifications for medical malpractice occurrence rates in the State of New York and obstetricians are up near the top. The Insurance Department has noted that "income does not necessarily relate to exposure to loss". 1I One house of the Florida Legislature had passed a measure providing state subsidies for physicians whose premium constituted more than 15 percent of their gross incomes. The insurance department of the State of New York has seriously considered compression of classification and physician premiums as percentage of income to aid high-risk specialties. The department also noted that compression of classification differentials would relieve the burden of high-risk at the expense of low risk physicians. As such, there would be a reduction in premiums for a smaller number of physicians in high risk specialties, and a much larger number of physicians would have their rates moderately raised to levels that do not precisely reflect the actuarial experience of their specialties. Such proposals have been consistently opposed by the New York State Medical Society. The position of the Medical Society, from its point of view, has the dual benefit of appealing to the masses and perpetuating "the crisis". I believe that it is incumbent upon high risk specialities, such as obstetrics, to insist on the following: a requirement that all physicians practicing in the state carry malpractice insurance; a requirement that all malpractice insurance companies cover all specialties; and changes in the rating system combining compression of classifications and physician premiums as a percentage of income. (This will also allow younger physicians to build up their practices and older physicians to cut down.) The response of the obstetrical community to what has always been nothing more and nothing less than an insurance problem has been to ignore this problem and to engage in rhetoric, some of which is potentially catastrophic to both patients and obstetricians. Let me discuss two such examples. Cesarean sections have been a major tool to assist obstetricians to improve pregnancy outcomes. In modem obstetrics, cesarean sections have been remarkably safe, especially in nonemergency circumstances.4,12 The appropriate use of fetal monitoring and sonography have increased ability to determine when cesarean sections are indicated. Increased ability to detect in utero fetal maturity together with the greater capability of neonatal intensive care units have further expanded the opportunity for cesarean section as a valuable tool. Bull. N.Y. Acad. Med.
MALPRACTICE CRISIS MAPATC
CII
177 7
Yet the cesarean section rates which were increasing before the alleged malpractice crisis have provoked an unfortunate debate. Prominent obstetricians have stated that "Fear of Lawsuit" is responsible for the increase in the cesarean section rate. 13 Convenience for obstetricians has also been cited as a reason for the increased cesarean section rate. "It's a lot easier for a doctor to schedule a woman for cesarean and come in at 8:00 in the morning and be done by 8:30."14 This last statement was made not by a lawyer criticizing obstetricians but by a prominent New York obstetrician about his own
colleagues. Fear of lawsuit is not an indication to perform cesarean section. Convenience is not an indication to perform cesarian section. I know of no study, survey, or proof that establishes "Fear of Lawsuit" or "Convenience" as the reason for the increased cesarean section rate. Cesarean sections may well be performed without proper indication, but this can only be determined on an individual case basis and in-hospital survey. Currently the State of New York has a committee investigating what the proper cesarean section rate should be in each hospital. Does any obstetrician know what that rate should be? I suggest that no one has the answer to that question. My fear and concern is that this kind of nonproductive rhetoric will tend to discourage cesarean sections when they are truly indicated or delay their performance until after the damage is done. Obstetricians who are stronger and more sure of themselves will not be deterred or delayed when they see the indication to perform a section. My concern is that weaker and less confident obstetricians will hesitate, delay, or avoid for fear of doing an unnecessary procedure. Many surgical texts argue that the term "unnecessary appendectomy" confused the issue because a policy of active surgical intervention on the basis of minimal clinical suspicion has demonstrably reduced morbidity and mortality. 15 I believe that a similar analogy is applicable to cesarean sections. While our law firm has handled many obstetrical cases, we have never pursued a single case predicated on an unnecessary cesarean section. That is not to suggest that a case based on harm caused by an unnecessary section would not be justified, but in our broad experience we have just not seen such a case. I should add that the cases that we have pursued are not predicated on failure or delay in performing the section but rather failure to timely recognize indications for section. Another potentially catastrophic reaction to the malpractice issue has been an unconscionable retreat by the American College of Obstetricians and Vol. 67, No. 2, March-April 1991
178
EGA----S.E. PEGALIS
178SE.
Gynecologists with respect to the use of electronic fetal monitoring. The College now advocates intermittent use of a stethoscope as equivalent to an electronic monitor to detect fetal distress.16 How the intermittent use of a stethoscope by a nurse counting heart beats per minute could conceivably be equated with a continuous tracing absolutely boggles the mind. Some very responsible physicians with whom I have discussed this issue assure me that physicians and hospitals will, nevertheless, go right on using electronic monitors. I assure you that some physicians and hospitals will interpret the signal from the College to go back to the "good old days." I believe that this misguided change in the standards was intended to help to defend malpractice cases. Cases that deserve to prevail will not be defeated by this change in the standards. But whether we win or lose the case is a far less important issue than whether we will lose or handicap some children along the way. The topic that I was asked to address was entitled "Malpractice Crisis in Obstetrics and Gynecology -Is There a Solution?" As a guest, honored by your invitation, I felt that I should not change the title of this discussion, but I have never felt that there was a "crisis". Rather I have felt that there are insurance problems and practical practice pitfalls for obstetricians. I do not intend to be presumptuous and to prescribe how obstetricians should practice their profession. From my perspective, I believe that the following has set the stage for a great number of claims: improper documentation, lack of consultation, gaps in attending to small details, and failure always to give the patient and her unborn baby the benefit of the doubt. I believe that a major benefit would be more attention to problem oriented record keeping. I do not see a trail of preventive thinking documented in most records. I suspect that in too many instances that is because such thinking is really not going on. I was asked to make construtive suggestions. I truly hope that what I have said has been constructive. What is a crisis? A hypertensive mother with a baby experiencing fetal distress -that is a crisis. Advances in obstetrics have increased the opportunity, sometimes, to avoid such crisis, frequently to detect such crises as they are evolving, and to "rescue" both mother and baby before harm is done. Such capability must be truly gratifying to conscientious and effective obstetricians. The other side of the coin may turn out to be a malpractice case. The malpractice tort system is not perfect. Obstetricians-even conscientious and effective ones -are not perfect. That is why insurance is important. The system works far better than most of you imagine, and no better system Bull. N.Y. Acad. Med.
MALPRACTICE CRISIS
179
has yet been devised. Our firm declines to pursue more than 90% of cases of potential clients who have either a question or grievance about their health care. A popular myth is that successful suits do not benefit the victims. Over the years our firm has recovered many substantial awards for handicapped children and their families. We stick with our clients and help to make the settlements work. It would be easy to document that these cases in which the funds are subject to court control, in fact, have accomplished what they were intended to do-ease the burden on the family of a handicapped child. REFERENCES 1. Naeye, R.: Causes of perinatal mortality in the U.S. Collaborative perinatal project. J.A.M.A. 238:228, 1977. 2. Friede, A. and Rochat, R.: Maternal Mortality and Perinatal Mortality: Definitions, Data and Epidemiology. In: Obstetric Epidemiology, Sachs, B., editor. Littleton, MA, PSG Publishing, 1985. 3. Alberman, E.: Prospects for better perinatal health. Lancet 1: 189-92, 1980. 4. Pauerstein, C.J.: Clinical Obstetrics. New York, Wiley, 1987, pp. 8-9. 5. Hagberg, B., Hagberg, G., and Olow, I.: Gains and hazards of intensive neonatal care: an analysis from Swedish cerebral palsy epidemiology. Devel. Med. Child Neurol. 24:13-19, 1982. 6. Kudrajvcev, T. et. al.: Cerebral palsytrends in incidence and changes in concurrent neonatal mortality: Rochester, MN, 1950-1976. Neurology 33:1433-38, 1983. 7. McManus, F., et. al.: Is cerebral palsy a preventable disease? Obstet. Gynec. 50:71-77, 1977. 8. Lou, H.C., Henricsen, L., and Bruhn, P.: Focal cerebral hypo-perfusion in children with dysphasia and/or attention deficit disorder. Arch. Neurol. 41:825, 1984.
Vol. 67, No. 2, March-April 1991
9. Browman, S.R.: Perinatal anoxia and cognitive development in early childhood. In: Infants Born at Risk, Field, T. and Sostec, A., editors. New York, Spectrum, 1979, pp. 29-52. 10. American College of Obstetricians and Gynecologists, Executive Board: Maternal Health Policy. Chicago, American College of Obstetricians and Gynecologists, 1977. 11. Corcoran, J.P.: A Balanced Prescription for Change: Report of the New York State Insurance Department on Medical Malpractice. Albany, N.Y., New York State Insurance Department, 1988. 12. Frigoletto, F.D., Jr., Ryan, K.J., and Phillippe, M.: Maternal mortality rate associated with cesarean section, Am.. J. Obstet. Gynecol. 136:969-70, 1980. 13. AMA News, March 25, 1988. 14. Time Magazine, November 7, 1988, p. 103. 15. Sabiston, D.C., Jr., editor: DavisChristopher Text Book of Surgery, 11th ed. Philadelphia, Saunders, 1977, 1071. 16. American Academy of Pediatrics and American College of Obstetrics and Gynecology: Guidelines for Perinatal Care, 2nd ed. Evanston, IL, 1988, pp. 67-68.
THE MALPRACTICE CRISIS: AN ATTORNEY'S VIEWPOINT* STEVEN E. PEGALIS, J.D. Attorney at Law Pegalis and Wachsman, P.C. Great Neck, New York
IN THE EARLY 1960s the perinatal mortality rate was reported at approximately 35-40/1000.1 In the early 1980s the rate has been reported between 10-12/1000 births. Since 1965 the rate has been steadily decreasing in the United States at an average rate of 3.4% per year.2 During this period, advances in obstetrical and perinatal care have included, but not been limited to the following:3,4 greater emphasis on early and continued high risk assessment; increased ability to determine gestational age and growth patterns through the use of sonography; and increased emphasis on maternal health habits such as nutrition, exercise, and avoiding alcohol, drugs, and smoking. Recognition of intrauterine growth retardation as a separate risk entity and the ability to monitor this and other potential problems with continuously improving antepartum modalities such as the biophysical profile. Improved management of obstetrical complications relating to prematurity, including advancements with tocolytic agents; ability to assess fetal lung maturity; the use of steroids to mature fetal lungs; and improved methods to monitor and to manage premature related deliveries. Improved screening techniques and protocols for the identification and treatment of such obstetrical complications as diabetes, toxemia, blood incompatibilities, and other complications. The establishment and regionalization of perinatal/neonatal tertiary care centers with improved methods for transportation. Improved methods of intrapartum surveillance, particularly the refinement of electronic fetal monitoring and scalp pH techniques. Improved techniques for delivery room resuscitation and stabilization of the compromised newborn. Neonatal intensive care units for the management of premature and sick infants, together with continued refinement of techniques for *Presented at a meeting of the Section on Obstetrics and Gynecology at the New York Academy of Medicine on April 18, 1989. Address for reprint requests: Pegalis and Wachsman, P.C., 175 East Shore Road, Great Neck, N.Y. 11023.
Vol. 67, No. 2, March-April 1991
174
S.E. PEGALIS
stabilizing, ventilating, and monitoring the newborn and assessing and diagnosing abnormalities as they evolve. These improvements in care have been temporally associated with the dramatic decline in the perinatal mortality rate, and as many as 25 to 30 babies per 1,000 births survive where previously they died. In the early 1960s the cerebral palsy rates approximated 2 to 3 per 1,000 births. One of the fears was that the "saving" of lives in the perinatal interval might dramatically increase cerebral palsy rates. Obviously, if only five of 25 babies "saved" from perinatal events were neurologically injured, the cerebral palsy rates might easily double or triple. That has not occurred. Hagberg,5 in a respected Swedish study, noted that the significant gains in the survival of nondamaged infants in the past 25 years were due to improved care during the perinatal period. He stated: "The very active efforts during recent years to prevent brain damage caused by neonatal jaundice, asphyxia, and perhaps also severe birth trauma, have given more profit in the form of undamaged babies than losses in the form of surviving severely disabled children, who would have died with a less active approach of earlier years.... An increased survival of severely brain damaged babies has been postulated, but so far has not been proven from epidemiologic studies ... As a net gain, this decline represents an increased absolute number of non-cerebral palsied children, in spite of a slightly rising incident of cerebral palsy." In the only major American study, the Mayo Clinic reported a progressive decline in cerebral palsy rates for infants over 2,500 grams and essentially no change in the rates for low birth weight children, although the population of high risk low birth weight children has changed from 3 to 4 pound babies to 1 to 2 pound babies.6 Another study concluded that 38% of cerebral palsy children were related to substandard care. Perhaps even more provocatively, that study suggested that protection of the infant's brain against less severe forms of insult could result in reduction of other conditions-for example, perceptual handicap. The authors stated: "There is every reason to believe that in the context of this article, florid cerebral palsy may represent but the 'tip of an iceberg'."7 Other studies8'9 have supported the concept that perinatal events may account for a significant number of children with mental retardation and other cognitive deficits, though the statistical incidence in this regard is far more difficult to establish with precision. The American College of Obstetricians and Gynecologists stated: "Excellence in maternal health care is the foundation for the physical, intellectual, social and economic success of any society. It is the basic determinant of the Bull. N.Y. Acad. Med.
MALPRACTICE CRISIS
MALPRACTICE CRISIS
175
health of future generations".'O This statement, read in context with the aforesaid results of improved obstetrical and perinatal care, would clearly seem reasonable and not at all presumptuous. Therefore, obstetrical and perinatal care providers, from an objective point of view, are arguably the most important of our health care providers. Obstetrical and perinatal care does make a difference; it does influence the outcome. It is directly from this capability that the liability insurance problem for obstetricians has arisen. There is an important added feature: the nature of evolving obstetrical care. The discipline of obstetrics requires the patience to observe a long but normally progressing labor on one end of the spectrum and the capability to react immediately to an unexpected emergency on the other end of the spectrum. It requires that obstetricians keep abreast in a field that is constantly changing. Unlike many other disciplines, obstetricians cannot schedule labor and delivery for convenient times. Most pregnancies end in delivery of a healthy infant, no matter what is or is not done. Therefore, obstetricians, on a daily basis, may be trapped by an erroneous assumption that the pregnancy being managed, on any particular day, will have a normal outcome. The trap is sprung when evolving problems are ignored or the obstetrician is not prepared for the emergency. As such, I believe that the obstetrical liability insurance problem exists for two reasons: The potential for avoidable grievous harm, and a medical specialty in which too many, too often, approach their daily practice with the wrong mindset. What then is the solution? The first prong is what I believe should be the universal mindset of all obstetricians: "We are important." "We make a difference." "It is not easy to practice obstetrics because pregnancy is not a natural phenomena that requires our occasional or passive attention, but rather one that continually requires our attention for at least two patients". The second prong of the solution stems in part from the first-obtaining adequate and affordable insurance coverage. Recognition of often irrational and inequitable medical compensation/reimbursement rates and the unique insurance risk that obstetricians have form the basis for more equitable insurance ratings. Obstetricians have a legal obligation to at least two patients and can be sued by either. There are only a limited number of available places in medical school, residency programs, and on hospital staffs. Each medical specialty plays a part in the total picture of covering the health care needs of patients. The total income for all physicians can easily fund an affordable malpractice system. I am not talking about "good" doctors paying for "bad" obstetricians. I am Vol. 67, No. 2, March-April 1991
176
S.E. PEGALIS
talking about adjustments in reimbursements and insurance rating systems that should be made and can be made to "solve" this insurance problem. There are 14 classifications for medical malpractice occurrence rates in the State of New York and obstetricians are up near the top. The Insurance Department has noted that "income does not necessarily relate to exposure to loss". 1I One house of the Florida Legislature had passed a measure providing state subsidies for physicians whose premium constituted more than 15 percent of their gross incomes. The insurance department of the State of New York has seriously considered compression of classification and physician premiums as percentage of income to aid high-risk specialties. The department also noted that compression of classification differentials would relieve the burden of high-risk at the expense of low risk physicians. As such, there would be a reduction in premiums for a smaller number of physicians in high risk specialties, and a much larger number of physicians would have their rates moderately raised to levels that do not precisely reflect the actuarial experience of their specialties. Such proposals have been consistently opposed by the New York State Medical Society. The position of the Medical Society, from its point of view, has the dual benefit of appealing to the masses and perpetuating "the crisis". I believe that it is incumbent upon high risk specialities, such as obstetrics, to insist on the following: a requirement that all physicians practicing in the state carry malpractice insurance; a requirement that all malpractice insurance companies cover all specialties; and changes in the rating system combining compression of classifications and physician premiums as a percentage of income. (This will also allow younger physicians to build up their practices and older physicians to cut down.) The response of the obstetrical community to what has always been nothing more and nothing less than an insurance problem has been to ignore this problem and to engage in rhetoric, some of which is potentially catastrophic to both patients and obstetricians. Let me discuss two such examples. Cesarean sections have been a major tool to assist obstetricians to improve pregnancy outcomes. In modem obstetrics, cesarean sections have been remarkably safe, especially in nonemergency circumstances.4,12 The appropriate use of fetal monitoring and sonography have increased ability to determine when cesarean sections are indicated. Increased ability to detect in utero fetal maturity together with the greater capability of neonatal intensive care units have further expanded the opportunity for cesarean section as a valuable tool. Bull. N.Y. Acad. Med.
MALPRACTICE CRISIS MAPATC
CII
177 7
Yet the cesarean section rates which were increasing before the alleged malpractice crisis have provoked an unfortunate debate. Prominent obstetricians have stated that "Fear of Lawsuit" is responsible for the increase in the cesarean section rate. 13 Convenience for obstetricians has also been cited as a reason for the increased cesarean section rate. "It's a lot easier for a doctor to schedule a woman for cesarean and come in at 8:00 in the morning and be done by 8:30."14 This last statement was made not by a lawyer criticizing obstetricians but by a prominent New York obstetrician about his own
colleagues. Fear of lawsuit is not an indication to perform cesarean section. Convenience is not an indication to perform cesarian section. I know of no study, survey, or proof that establishes "Fear of Lawsuit" or "Convenience" as the reason for the increased cesarean section rate. Cesarean sections may well be performed without proper indication, but this can only be determined on an individual case basis and in-hospital survey. Currently the State of New York has a committee investigating what the proper cesarean section rate should be in each hospital. Does any obstetrician know what that rate should be? I suggest that no one has the answer to that question. My fear and concern is that this kind of nonproductive rhetoric will tend to discourage cesarean sections when they are truly indicated or delay their performance until after the damage is done. Obstetricians who are stronger and more sure of themselves will not be deterred or delayed when they see the indication to perform a section. My concern is that weaker and less confident obstetricians will hesitate, delay, or avoid for fear of doing an unnecessary procedure. Many surgical texts argue that the term "unnecessary appendectomy" confused the issue because a policy of active surgical intervention on the basis of minimal clinical suspicion has demonstrably reduced morbidity and mortality. 15 I believe that a similar analogy is applicable to cesarean sections. While our law firm has handled many obstetrical cases, we have never pursued a single case predicated on an unnecessary cesarean section. That is not to suggest that a case based on harm caused by an unnecessary section would not be justified, but in our broad experience we have just not seen such a case. I should add that the cases that we have pursued are not predicated on failure or delay in performing the section but rather failure to timely recognize indications for section. Another potentially catastrophic reaction to the malpractice issue has been an unconscionable retreat by the American College of Obstetricians and Vol. 67, No. 2, March-April 1991
178
EGA----S.E. PEGALIS
178SE.
Gynecologists with respect to the use of electronic fetal monitoring. The College now advocates intermittent use of a stethoscope as equivalent to an electronic monitor to detect fetal distress.16 How the intermittent use of a stethoscope by a nurse counting heart beats per minute could conceivably be equated with a continuous tracing absolutely boggles the mind. Some very responsible physicians with whom I have discussed this issue assure me that physicians and hospitals will, nevertheless, go right on using electronic monitors. I assure you that some physicians and hospitals will interpret the signal from the College to go back to the "good old days." I believe that this misguided change in the standards was intended to help to defend malpractice cases. Cases that deserve to prevail will not be defeated by this change in the standards. But whether we win or lose the case is a far less important issue than whether we will lose or handicap some children along the way. The topic that I was asked to address was entitled "Malpractice Crisis in Obstetrics and Gynecology -Is There a Solution?" As a guest, honored by your invitation, I felt that I should not change the title of this discussion, but I have never felt that there was a "crisis". Rather I have felt that there are insurance problems and practical practice pitfalls for obstetricians. I do not intend to be presumptuous and to prescribe how obstetricians should practice their profession. From my perspective, I believe that the following has set the stage for a great number of claims: improper documentation, lack of consultation, gaps in attending to small details, and failure always to give the patient and her unborn baby the benefit of the doubt. I believe that a major benefit would be more attention to problem oriented record keeping. I do not see a trail of preventive thinking documented in most records. I suspect that in too many instances that is because such thinking is really not going on. I was asked to make construtive suggestions. I truly hope that what I have said has been constructive. What is a crisis? A hypertensive mother with a baby experiencing fetal distress -that is a crisis. Advances in obstetrics have increased the opportunity, sometimes, to avoid such crisis, frequently to detect such crises as they are evolving, and to "rescue" both mother and baby before harm is done. Such capability must be truly gratifying to conscientious and effective obstetricians. The other side of the coin may turn out to be a malpractice case. The malpractice tort system is not perfect. Obstetricians-even conscientious and effective ones -are not perfect. That is why insurance is important. The system works far better than most of you imagine, and no better system Bull. N.Y. Acad. Med.
MALPRACTICE CRISIS
179
has yet been devised. Our firm declines to pursue more than 90% of cases of potential clients who have either a question or grievance about their health care. A popular myth is that successful suits do not benefit the victims. Over the years our firm has recovered many substantial awards for handicapped children and their families. We stick with our clients and help to make the settlements work. It would be easy to document that these cases in which the funds are subject to court control, in fact, have accomplished what they were intended to do-ease the burden on the family of a handicapped child. REFERENCES 1. Naeye, R.: Causes of perinatal mortality in the U.S. Collaborative perinatal project. J.A.M.A. 238:228, 1977. 2. Friede, A. and Rochat, R.: Maternal Mortality and Perinatal Mortality: Definitions, Data and Epidemiology. In: Obstetric Epidemiology, Sachs, B., editor. Littleton, MA, PSG Publishing, 1985. 3. Alberman, E.: Prospects for better perinatal health. Lancet 1: 189-92, 1980. 4. Pauerstein, C.J.: Clinical Obstetrics. New York, Wiley, 1987, pp. 8-9. 5. Hagberg, B., Hagberg, G., and Olow, I.: Gains and hazards of intensive neonatal care: an analysis from Swedish cerebral palsy epidemiology. Devel. Med. Child Neurol. 24:13-19, 1982. 6. Kudrajvcev, T. et. al.: Cerebral palsytrends in incidence and changes in concurrent neonatal mortality: Rochester, MN, 1950-1976. Neurology 33:1433-38, 1983. 7. McManus, F., et. al.: Is cerebral palsy a preventable disease? Obstet. Gynec. 50:71-77, 1977. 8. Lou, H.C., Henricsen, L., and Bruhn, P.: Focal cerebral hypo-perfusion in children with dysphasia and/or attention deficit disorder. Arch. Neurol. 41:825, 1984.
Vol. 67, No. 2, March-April 1991
9. Browman, S.R.: Perinatal anoxia and cognitive development in early childhood. In: Infants Born at Risk, Field, T. and Sostec, A., editors. New York, Spectrum, 1979, pp. 29-52. 10. American College of Obstetricians and Gynecologists, Executive Board: Maternal Health Policy. Chicago, American College of Obstetricians and Gynecologists, 1977. 11. Corcoran, J.P.: A Balanced Prescription for Change: Report of the New York State Insurance Department on Medical Malpractice. Albany, N.Y., New York State Insurance Department, 1988. 12. Frigoletto, F.D., Jr., Ryan, K.J., and Phillippe, M.: Maternal mortality rate associated with cesarean section, Am.. J. Obstet. Gynecol. 136:969-70, 1980. 13. AMA News, March 25, 1988. 14. Time Magazine, November 7, 1988, p. 103. 15. Sabiston, D.C., Jr., editor: DavisChristopher Text Book of Surgery, 11th ed. Philadelphia, Saunders, 1977, 1071. 16. American Academy of Pediatrics and American College of Obstetrics and Gynecology: Guidelines for Perinatal Care, 2nd ed. Evanston, IL, 1988, pp. 67-68.
