Providers' Liability Concerns Limit Women's Birth Options

By Rachel Walden — September 30, 2009

The American College of Obstetricians and Gynecologists has recently released findings from its 2009 Survey on Professional Liability, which asked practicing ob/gyns and ob/gyn residents if and how their practices have been affected by liability concerns. Respondents were asked whether they had made any practice changes since January 2006 because of the affordability or availability of professional liability insurance, or because of fear of liability claims or litigation.

Among the findings, 59.2% (of 5,644 respondents) reported having made one or more changes to their practice since 2006 for reasons related to the availability and affordability professional liability insurance. Of those reporting making changes for this reason, 19.5% reported increasing the number of cesarean deliveries and 19.5% indicated they stopped performing or offering VBACs.

In addition to making changes based on the availability and affordability of insurance, many ob/gyns report having made changes to their practices because of fear of professional liability or litigation (in other words, out of fear of being sued or being held responsible for a negative outcome). 62.9% (of the 5,644) reported having made one or more changes to their practice for this reason. Of those, 29.1% reported increasing the number of cesarean deliveries, and 25.9% stopped offering and performing VBACs. 20-30% (depending on whether the question was about availability of liability insurance or fear of liability claims) also reported decreasing the number of high-risk obstetric patients they cared for.

These findings probably don’t surprise many birth advocates, who have expressed concern that ob/gyns are limiting women’s birth options for reasons other than medical evidence and an individual woman’s preferences.

2 responses to “Providers’ Liability Concerns Limit Women’s Birth Options”

  1. It’s a shame when fear of a lawsuit keeps doctors from giving the right care for an individual woman’s needs. We need to change the legal system to protect doctors from futile lawsuits and target those who neglect or cause real harm to their patients.

  2. This latest admission by ACOG should give us all pause. Your obstetrician is afraid of being sued. Should that fear guide the way you’re treated during your pregnancy, labor, and the birth of your baby? Should fears of litigation have a direct effect on the rate of cesarean section in our country, and should your risk of having a c-section depend on your OB’s personality? Common sense and our general understanding of ethical behavior make us want to answer these questions with a confident and resounding “Of course not!” The dismal truth, however, is that those three questions must be answered with an unequivocal “Yes”. I am not a researcher, but as a Lamaze educator, doula and Lactation Consultant, I am led by the needs of the women I teach and support to be aware of best-evidence care, of the most current studies, and what’s going on with practitioners in the “industry” of birth.

    Recent news from the American College of Obstetricians and Gynecologists’ (ACOG) 57th Annual Clinical Meeting, as reported in Medscape Today (Medscape Medical News, May 12, 2009), was revealed in an article entitled “Liability Fears May Be Linked to Rise in Cesarean Rates”. I’ll just quote it directly so that you can have the very words of the study as reported. (All bold emphasis is mine.)

    “It has been suggested that medical-legal pressures are a factor in the rise in cesarean deliveries. A number of studies have borne this out. Localio and colleagues (JAMA. 1993; 269:366-673) found a positive association between medical malpractice claims risk and the rate of cesarean delivery. Murthy and colleagues (Obstetrics & Gynecology 2007; 110:1264-1269) found an association between professional liability premiums and rate of cesarean delivery — for every $10,000 increase in insurance premium there was a 15% increase in the rate of cesarean (s)delivery. First of all, I applaud the abstract, that it quantifies a perceived problem,” Dr. Barnhart said. “We all anticipated that defensive medicine might be a reaction to litigation, and this paper demonstrates that that is indeed the case,” Dr. Barnhart said. “So don’t just blame the doctor for doing a C-section, recognize that there’s probably a reason that [he or she is] doing it. And that fear of litigation is the reason,” Dr. Barnhart concluded.” (Paragraphs 6, 12, 13 and 14.)

    This article is really a confession on the part of OBs. It’s a way to say “You see, it’s not our fault that we have to do all these c-sections. We’re just human and fear is making us do unnecessary surgeries, just in case we get sued” and puts the OB in the role of victim. It’s an admission that what is being done in the way of care is for the welfare of the OB, and not for the welfare of the woman in his care. We assume that the most fundamental tenet of patient care is that what a doctor does is for OUR benefit, and not for her or his well-being, convenience or safety. We are right to feel that any doctor who picks up a scalpel and performs a cesarean surgery for these “defensive” reasons is committing a real crime, a travesty of ethical behavior, a total betrayal of our trust in the doctor-patient relationship. What’s happened to “first do no harm”? It’s easy for the OB to use cesarean delivery as an answer to all potential problems, to say that something might be wrong, do the surgery, and when of course everything turns out fine, mother and family are just relieved. But should you have to give up your right to be treated according to your genuine health status, have to risk the many documented hazards of c-section for both you and your baby, and compromise your future reproductive health to protect the personal welfare of your doc? So yes: your OB may treating you in his or her own personal, financial interest, since OBs seem happy to admit that one of the reasons for the rising cesarean rate is fear of litigation.

    Does your risk of c-section depend on your OB’s personality? Again, the answer is yes. A disturbing article, called “Women’s Risk of Having C-Section May Depend on Her Obstetrician’s Personality”, discusses a study published in the Journal of Obstetrics and Gynecology in 2008. (Here is the citation: Allcock, C., Griffiths, A., & Penketh, R., The effects of the attending obstetrician’s anxiety trait and the corresponding obstetric intervention rates. Journal of Obstetrics and Gynecology, 28(4), 390-393. [Abstract]).

    As before, quoting directly makes things abundantly clear: “Obstetricians were asked to complete a validated survey that measures ‘trait anxiety’ which is stable and enduring…”, it is an integral and unchanging part of a person’s personality, and very different from “‘state anxiety’” which happens in response to a particular situation. The results are very concise: “Statistical analysis revealed that the doctor’s trait anxiety levels were highly correlated with cesarean rates. The obstetricians with the least anxiety had the lowest emergency cesarean rates. The obstetricians with the most anxiety had the highest rates.”

    These studies document just two of the many circumstances that affect our chances of having a cesarean, very few of which have to do with a mother’s or baby’s actual health. Of course, many noted researchers have published studies on other reasons for the rising c-section rate, but these studies expose a side of obstetric practice in a way that is particularly damning. Each doctor makes a choice: either to treat ethically, or with regard for his own interests. There are many caring and dedicated doctors who stay current with and give only best-evidence care. I admire the ethical practitioners who do not rely on routine interventions, and who use cesarean surgery only to save the lives or health of babies and mothers, and not for their own welfare, but the ever-rising c-sections rate illustrates the fact that they are a minority. I am more than an interested observer, it’s true, but what I see and hear is explained, more often than not, by the studies I talk about here. OBs are ducking the questions that arise about the morality of performing cesareans for defensive reasons or for “personality traits”, and ducking patient’s questions about best-evidence care, but somehow we have to make them face this reality: “Approximately one-third to one-half of maternal deaths can be attributed to the cesarean procedure itself.” And: “There are no well-documented prospective trials demonstrating benefit to the fetus or to the mother that would justify the extent of the increase in the primary cesarean rate.” (Obstetrics: Normal & Problem Pregnancies, 3rd Ed. Gabbe et al. p634).

    For each baby that you will birth, you will have only that one day, that one chance, to have that birth, so when deciding on a caregiver, remember that we all have access to the web and its riches and can learn the facts about normal, healthy birth, and conservative reasons for c-section as well. You can find local recommendations for OBs from other women across the United States at The facts are yours for the looking. Your prospective OB also knows that best-evidence information is out there for you to see, so question him/her closely about c-section rate, induction rate, episiotomy rate, and if you sense a defensive posture about his stats, or an air of reluctance to tell you what you want to know, politely say your thank-you’s, and head for the door.

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