May 8, 2000 -- "I'm not blaming someone for losing the baby. I know bad things happen that are nobody's fault," says Linda, a 39-year-old mother of two. "But I am devastated over being told that I can't have another, and that is somebody's fault."
Linda's baby died during pregnancy, a tragic ending to the anticipation of welcoming a new child. But a year's worth of complications from a procedure to remove the expired fetus resulted in a hysterectomy, and therefore the loss of her fertility.
After long nights of anguish shared with her husband, the couple reluctantly decided last January to file a lawsuit against the medical team that handled her pregnancy; sadly, the defendants include the doctor who had delivered her two previous babies and in whom she had placed "tremendous trust and confidence."
Suing a trusted doctor is a nightmare for patients already suffering deeply when something goes wrong in childbirth. Yet the inherent risks to a newborn's health or to a woman's fertility have, over the years, made obstetrician-gynecologists (ob-gyns) the doctors who are most vulnerable to lawsuits, causing an exodus from the specialty in the 1980s. Now the latest survey from the American College of Obstetricians and Gynecologists (ACOG) shows that once again doctors are being driven from the practice of obstetrics by the high costs of delivering high-risk care.
"Nature is not uniformly kind," says Albert L. Strunk, MD, JD, a former ob-gyn and trial lawyer, who is now vice president for fellowship activities at ACOG. "Six percent of all births involve birth defects; 3% involve a major birth defect. That's a figure that applies year after year, regardless of extenuating circumstances."
Yet since the 1980s, the number of lawsuits and claims against ob-gyns has been greatly disproportionate to their numbers in the medical profession. An August 1999 report by the Risk Management Foundation of the Harvard Medical Institutions found that although ob-gyns made up only 5% of physicians covered under their insurance plan, they generated 14% of all claims and accounted for 23% of the plan's losses.
"Any time a parent doesn't have a perfect child, they want compensation," says Michelle A. Bourque, JD, a New Orleans-based defense lawyer with the American Bar Association. The heavy emotional impact of damage to a woman's reproductive capabilities, as in Linda's case, also increases the likelihood that a woman will sue.ACOG's survey, to which 1,428 ob-gyns responded, showed that 76.5% had been sued at least once in their careers, up from 73% in1996. And most ob-gyns are sued more than once. "Ob-gyns can expect an average of 2.53 medical malpractice lawsuits to be filed against them during their careers," says the ACOG survey, released in January, a figure that has also risen since 1996, up from 2.31.
"It's widely acknowledged that ob-gyns, along with neurosurgeons and orthopedic surgeons, are sued more frequently because of their high-risk clientele," says Bourque. "Ob-gyns are especially susceptible because of the intense emotional significance of birth."
The Doctors' Nightmare
In addition to being sued more frequently, ob-gyns pay the highest claims. In a 1998 report summarizing 13 years of data, the Physician Insurers Association of America, a Rockville, Md., trade association, found that 26% of claims resulted in judgments of $250,000 or more. Such high payouts inevitably drive up the cost of medical malpractice insurance. The national average for ob-gyns' annual premiums, according to Strunk, is $30,000, although in some areas it can reach a staggering $140,000. In comparison, premiums for internal medicine physicians can range from $3,782 in Arkansas to $28,548 in New York's Nassau and Suffolk counties, according to the monthly newsletter Medical Liability Monitor.
Ob-gyns first began leaving their profession in significant numbers in the 70s and 80s, when liability insurance became either unavailable or unaffordable. Today, the pressures on doctors who perform obstetrical care are somewhat different. Decreasing reimbursements from HMOs, added to high malpractice premiums, have raised the cost of providing care so high that many doctors feel they can no longer afford to practice.
"We're in a crisis situation," says Susan Wilson, MD, a San Francisco ob-gyn, who recently restricted her practice to gynecology. "HMO reimbursements are so low that they don't cover the cost of providing care. Sometimes what the insurance provider will pay for a treatment, like a shot of Rhogam, doesn't cover the cost of the drug and the equipment. So what do you do? Do you pay for it yourself? Do you not provide the care?"
Other doctors feel they pay as high a cost psychologically as monetarily for delivering high-risk obstetrical care. "The amount of anxiety and the number of nightmares and sleepless nights caused by lawsuits is the worst," says one retired ob-gyn who wishes to remain anonymous. He left his private practice after 35 years when he realized that he was working three months of the year solely to cover the cost of his $60,000 malpractice insurance premium.
"I'm not paid a penny more for high-risk cases," says Laurie Green, aSan Francisco ob-gyn. And "because of the cost of doing business and the threat of lawsuits," she says, "we have a terrible time recruiting new doctors."
The combined pressures surrounding obstetrical care continue to take their toll. The ACOG survey shows that as a result of the risk of malpractice, 17.1% of ob-gyns have decreased the amount of high-risk obstetric care they give, 8.9% are no longer practicing obstetrics at all, and 6.2% are decreasing the number of deliveries they perform.
Fairness Need Not Apply
The arbitrary nature of medical malpractice litigation, in which an excellent doctor can be destroyed by a lawsuit while an incompetent doctor escapes observation, augments physicians' frustrations. A paper in January's Journal of Family Practice observed that the doctor's bedside manner can be a definitive factor in a patient's decision to pursue litigation. Those doctors with poor interpersonal skills, even when they made fewer mistakes, were morelikely to get sued than those who were better at communicating with patients. Perceived lack of respect or concern was the most common complaint made by patients of frequently sued obstetricians, reported a Florida study cited in the paper.
In Linda's case, her medical team's refusal to accept responsibility played a role in her decision. "I became convinced that a lawsuit was the only acceptable way to send a message that you're not happy with the situation," she says. "There was an arrogance on the doctors' part of not being willing to admit that they had made a mistake."
While Linda's anguish is legitimate, unfortunately ob-gyns are responding to the psychological and financial costs of lawsuits by abandoning obstetrical practice and deliveries, according to the ACOG survey. And that's what concerns Strunk.
"The impact in the '80s was that we had portions of the country left without ob-gyns," he says. "I think the current pressures will have the same general impact," he says. Which may well mean fewer doctors tending high-risk pregnancies and delivering babies.
Jennifer Howze's work has appeared in TheWall Street Journal Europe, The New York Observer, Self, and Travel and Leisure. She is based in New York City.