A commentary in this week’s JAMA (Who Will Deliver Our Grandchildren? Implications of Cerebral Palsy Litigation) laments that, “It has never been safer to have a baby and never more dangerous to be an obstetrician.” A large percentage of malpractice premiums for OBs go to fund awards and legal fees related to babies with cerebral palsy (CP). The typical case goes something like this: the plaintiff argues that the client’s CP was caused by oxygen deprivation during delivery, and that if the OB had properly interpreted the Electronic Fetal Monitoring (EFM) strips he or she would have performed a C-section (or performed it sooner), and that the baby would have been fine. The plaintiff’s side provides a simple explanation –pointing to evidence that fetal distress was apparent on the strip– along with an obviously injured client, and the jury responds with a large judgment against the doctor.
However, the authors cite studies showing that CP is only rarely caused by birth asphyxia, that such cases are not preventable, that EFM is no better than older monitoring methods for detecting birth asphyxia and that use of EFM leads to unnecessary interventions that cause complications.
As far as I can tell, this is a good analysis of the situation, but I’m less impressed with the recommendations, which include “better self-policing by the medical profession, establishment of special health courts, policing by the medical profession of those offering expert opinion, dispute resolution, creation of a no-fault system for resolving disputes over birth outcomes, and better education of the public.”
These are reasonable ideas –they are also nothing new and unlikely to be adopted or to make much of an impact. Here are a couple suggestions the authors didn’t make, but should have:
- Mandate EFM training from a risk management perspective. A key reason plaintiffs introduce EFM-based evidence is that it’s often easy to demonstrate that the defendant didn’t follow best practices in using and interpreting the EFM tracings. That vulnerability can be greatly reduced and the case can become much more defensible.
Malpractice carriers and self-insured groups are recognizing this opportunity and beginning to provide incentives for OBs and nurses to undergo training programs such as the ones produced by medical risk management firm Advanced Practice Strategies of Boston (a MedPharma Partners client).
- If EFM really causes more harm than good medically in addition to causing litigation ills –as the authors assert– why not persuade the American College of Obstetricians and Gynecologists (ACOG) to issue clinical guidelines recommending that EFM not be used?
Both of these suggestions are more likely to be implemented and more likely to work than what the authors recommend.October 10, 2005