The CDC has just released its annual report on birth statistics, Births: Final Data for 2009. Once again, the C-section rate has risen:
In 2009, the total cesarean delivery rate reached a record high of 32.9 percent of all births, a 2 percent increase from 32.3 percent in 2008. This is the 13th consecutive year in which the cesarean delivery rate has risen …
There are a number of reasons for the continuing rise, but one of the most important is obstetrician liability concerns. I wrote about a spectacular example yesterday, the recent $144 million verdict against a Michigan hospital for neonatal injuries sustained by a large baby due to shoulder dystocia. The cause of action was failure to offer a C-section. Shoulder dystocia cannot be predicted in advance and the scientific evidence is that prophylactic C-section for macrosomia does not improve outcomes. But that didn’t stop the lawyer from arguing or the jury from believing that a prophylactic C-section should have been recommended.
There is simply no way we are going to get a handle on C-section rates if we continue to ignore obstetricians’ concerns about liability. As I first wrote in March 2010, obstetricians have been desperately trying to explain how liability concerns are driving the rising C-section rate, yet they are consistently ignored.
It’s rather surprising since obstetricians perform the C-sections and have much greater insight into their motivations than anyone else. But everyone from insurance company executives to health policy experts to natural childbirth advocates disparage and ignore doctors’ explanations. How do they justify ignoring the very people whose behavior they wish to change?
Law professor Sandra Johnson offers insights into doctors’ concerns and how they are ignored in, of all places, a law review article entitled, Regulating Physician Behavior: Taking Doctors’ “Bad Law” Claims Seriously.
Doctors frequently claim that the very law intended to improve the lot of their patients is instead making the doctors provide poor care. These “bad law” claims are levied against malpractice litigation that makes doctors practice “defensive medicine”; … against antitrust laws that prevent doctors from organizing themselves in ways that would produce more cost-effective and accessible care; and against regulations that impede important medical research. These “bad law” claims assert that the law’s effort to promote patient health and well-being has actually caused significant harm.
And why have these concerns been ignored?
Medicine’s complaints … [have come] to be characterized as the work of a self serving guild, rather than a profession motivated by altruism and armed with expertise, or at least as the work of the recalcitrant “bad apples” who continued to resist improvements that the more enlightened among them embraced. These narratives marginalized physicians’ … claims and diminished them as a source of legitimate information about the effectiveness of reform efforts.
Rather than addressing the substance of doctors’ arguments, experts and lay people have denied that there the complaints are legitimate, ascribing them to greed and self interest. Yet in the case of medical liability, as in other areas of medical “reform,” doctors are often right.
Professor Johnson explains that doctors’ liability concerns are not simply ignored; even when they are directly addressed, they are often dismissed as irrelevant by those who don’t or won’t understand their impact on individual practitioners. She identifies a number of these dismissive behaviors.
All’s not well that ends well
Policy experts and lay people alike often point to the fact that physicians win most malpractice suits as evidence that doctors shouldn’t worry about being sued. But as Prof. Johnson notes:
The enforcement process itself [in this case, the lawsuit] also imposes significant penalties in the course of identifying violators. These penalties are distinct from formal penalties levied after a conclusive finding that a violation has occurred. These “penalties of the process” exert their own deterrent effect. When substantial, they will produce avoidance behaviors on the part of those who might fall within the investigative net even though the likelihood that they will be subject to formal sanctions is nil or close to it.
In other words, the risk of being sued has a deterrent effect, regardless of whether the doctor wins or loses. And who would know better than the doctors themselves?
The deterrence effect of these informal penalties may produce results that actually undermine the goals of the formal legal requirements. Yet, they are all but invisible—they make no appearance in the formal description of the standards and procedures incorporated in the law. The best information available concerning the operation of this shadow system of enforcement comes from the people who experience it, those doctors who claim that there is “bad law” causing them to avoid doing the right thing.
The interminacy of law
Lay people in particular like to claim that if the doctor “does the right thing,” he or she has nothing to worry about. That is startlingly naive view.
… It is hardly ever the case that lawyers can tell doctors: “I assure you that you have nothing to be concerned about … You are safe.” … So, instead, what doctors often hear lawyers say is: “Well, anyone with a filing fee can sue you, but they are not going to win.” This consolation … has to ring hollow to anyone who has been the defendant in any suit, even one that is eventually dismissed. Instead of reassurance, one could understand that this phrase would be heard as confirmation of the unpredictability of the legal hammer.
Asymmetrical legal risk
At times, legal risk is lined up entirely on one side as the doctor looks at the risks of particular decisions… [W]hen we began our work on pain management in 1995, only the doctor who prescribed opioids for his patients in pain faced investigation, sanctions, and liability claims. The doctor who used the less effective medications and neglected their patient’s pain faced no legal risk at all.
The same asymmetrical risk applies to C-sections. An obstetrician who fails to perform a C-section can be accused of negligence if there is anything wrong with the baby. An obstetrician who performs a C-section, even one that is not medical necessary, faces no legal risk at all.
Professor Johnson’s most important message is that it is time to start taking physician liability concerns seriously instead of dismissing such complaints are motivated by greed and self interest:
[We] must accept that well-intentioned regulatory standards and enforcement systems can have negative outcomes as physicians react, and patients suffer as a result. Taking physicians’ “bad law” complaints seriously brings physician behavior to the table as a credible and legitimate factor in evaluating the performance of the law… Taking “bad law” claims seriously appreciates that the behavior-inducing effects of the enforcement effort may thwart the goals of the regulation itself.
The bottom line? If we continue to ignore obstetricians liability concerns, the C-section rate will continue to rise.
