Medicolegal Issues

“No-fault” insurance that covers a pregnancy and birth

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The author envisions one-child-at-a-time policies that will blunt the OB malpractice crisis. Could it work?



The author reports no financial relationships relevant to this article. Support for the development of the manuscript of this article includes a grant from the American College of Obstetricians and Gynecologists.

The practice of obstetrics is in crisis because of the ever-rising cost of malpractice insurance. Premiums have become so burdensome in many states that they discourage physicians from providing OB care.

And matters grow worse: Many insurance companies are discontinuing liability coverage altogether. With providers unable to afford or obtain insurance, we seem doomed to see a repeat of the loss of OB services that led to harm to patients in the past.1,2

But if we can discern a crisis at hand, isn’t it reasonable to act to develop a solution that prevents, or solves, the problem? In the past, we waited until the system collapsed—to the detriment of patients, their infants, and physicians. In earlier crises in some states, good solutions ultimately allowed for the return of OB care.3,4

Experience has taught that, sadly, state legislatures usually act only after the system collapses; then, they may opt for the easiest (often temporary) solution instead of the best one.

In this article, I offer a solution to the malpractice insurance crisis that is easy and that may also be the best one possible. The solution covers three areas of concern:

  • payment (including who pays for the policy)
  • description of the policy (i.e., the benefits provided)
  • regulations and contracts involved (to optimize medical care and minimize medical costs).

A proposal to create “no-fault” pregnancy insurance

I believe that a good solution to the impending crisis in OB medical liability is a form of no-fault, mutual insurance in which policies are written for one pregnancy at a time—just as air travel insurance is written for one flight at a time. A policy would be designed to protect a mother and baby while improving the quality of OB care.

This innovation would provide for continued availability of OB care when the current medical liability system collapses. The physician could pay the premium for the one-pregnancy policy, or it could be paid for directly by the mother’s health insurer, which is paying for the rest of her health care (i.e., an enterprise medical liability solution, which provides a financial incentive for the insurer to help provide excellent, not just the cheapest, OB care).5

I call this solution Mothers Mutual Medical Liability Insurance. Here, I refer to it as “3MLI.”

Keeping patients safe

No question: Medical errors that harm patients are far too common in our current system.6 But malpractice litigation as a deterrent to medical mishap? That has been a failure. Patients, after all, sue their physician to be made whole after they have suffered an injury—but not for any punitive purpose.

As the Institute of Medicine (IOM) said in its landmark report on medical errors: “When an error occurs, blaming an individual does little to make the system safer and prevent someone else from committing the same error.”7 What is needed instead, according to the IOM, is creation of an environment “conducive to encourage healthcare professionals and organizations to identify, analyze, and report errors without the threat of litigation and without compromising patients’ rights.”

That is the environment that 3MLI could bring about.

Mothers Mutual Medical Liability Insurance (3MLI)
has its benefits

Several features make a 3MLI system appealing—to all parties. Such a system:

  • preserves a patient’s right to sue
  • offers a no-fault settlement option as an alternative to litigation
  • avoids blame and punishment, which are demonstrably ineffective at minimizing medical errors
  • links to a system to optimize the standard of care and record keeping
  • guarantees health care and ancillary services for as long as needed by the patient and family
  • covers case management services, life insurance, and ongoing legal advocacy
  • includes ACOG accreditation to assure clinical excellence and minimize the risk of adverse outcome
  • creates a database of adverse obstetric outcomes that add to our knowledge about causes and possible preventions

This way to a better way

An ideal 3MLI system for providing OB care would have to:

  • ensure continued availability of services
  • allow for the care of all infants who need help, with expanded opportunities for families to obtain needed medical, economic, and legal assistance
  • establish an objective, critical evaluation of the quality of care, with built-in incentives for continuous quality improvement
  • end battles over tort reform
  • preserve victims’ right to sue
  • offer a no-fault option sufficiently attractive that most patients would prefer it to the uncertainties of a lawsuit
  • create a structure in which payers, patients, providers, lawyers, and government are on the same side, with the potential for increased financial efficiencies and improved health-care outcomes
  • provide the full spectrum of services—possibly lifelong—that an injured infant may require
  • avoid costly, lengthy, often futile litigation.

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