Medicolegal Issues

ObGyn malpractice liability risk: 2020 developments and probabilities

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The purposes and effects of the medical malpractice system

The essential goals of tort law (including medical malpractice) include compensation for those who are injured and deterrence of future injuries (TABLE 2). What are the overall effects to the medical malpractice system? Unfortunately, the answer is that the law delivers disappointing results at best. It has a fairly high error rate. Many people who deserve some compensation for their injuries never seek compensation, and many deserving injured patients fail in efforts to receive compensation. At the same time, a few of the injured receive huge recoveries (even windfalls), and at least a small fraction receive compensation when there was no medical error. In addition to the high error rate, the system is inefficient and very expensive. Both defendants (through their insurance carriers) and plaintiffs spend a lot of money, years of time, and untold emotional pain dealing with these cases. The system also exacts high emotional and personal costs on plaintiffs and defendants.

Malpractice reform has not really addressed these issues—it has generally been focused on ways to reduce the cost of malpractice insurance. The most effective reform in reducing rates—caps—has had the effect of compensating the most seriously injured as though they were more modestly injured, and dissuading attorneys from taking the cases of those less seriously injured.

The medical and legal professions exist to help patients (the public). It does not seem that we have arrived at a system that does that very fairly or efficiently when a patient is injured because of preventable medical error.

Why did the 2 opening case vignettes come out differently?

The two vignettes described at the beginning, with similar injuries (shoulder dystocia), had disparate outcomes. In one there was a defense verdict and in the other a verdict for the plaintiffs of more than $2 million. The differences explain a number of important elements related to malpractice claims. (We have only very abbreviated and incomplete descriptions of the cases, so this discussion necessarily assumes facts and jumps to conclusions that may not be entirely consistent with the actual cases.)

These vignettes are unusual in that they went to trial. As we have noted, only a small percentage of malpractice cases are tried. And the verdict for the plaintiff-patient (in the second case) is unusual among those cases that go to trial, where plaintiffs seldom prevail.

From the facts we have, one significant difference in the 2 cases is that the plaintiff’s expert witness specifically testified in the second case that the “medical standard of care did not permit traction under these circumstances.” That is an essential element of a successful plaintiff’s malpractice case. In this case, the expert could also draw a connection between that breach of standard of care and harm to the child. In the case without liability, the nursing staff was able to testify that there was no shoulder dystocia because if there had been such an injury, they would have immediately launched into special action, which did not happen. By contrast, in the liability case, there seemed to be critical gaps in the medical record.

It is also important to remember that these cases were tried in different states, with different laws. The juries and judges in the 2 cases were different. Finally, the quality of the attorneys representing the plaintiffs and defendants were different. We mention these factors to point out that medical malpractice is not an exact science. It depends on many human elements that make the outcome of cases somewhat unpredictable. This unpredictability is one reason why parties and attorneys like to settle cases.

Watch for the third and final article in this series next month, as we are going to look at “apology in medicine and a proactive response” to communication regarding a complication.

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