Sunday, May 15, 2011

Health Issue vs Legal Issue?

One of the hardest things couples face is determining whether information from a care provider is describing a real and present health issue, or if it is a reflection of a care providers's liability fears.

Care providers, particularly OBs, are under tremendous legal pressure as they manage the health of their patients. According to this article, OBGYNs are five times more likely to be sued compared with pediatricians, and roughly half of all OBs under the age of 40 have already been sued. A lawsuit is not just a financial issue, it's personal as it affects every area of their practice and personal lives. One physician wrote:
"If [a medical mistake] happens, you have to integrate the experience, but for a while you lose your bearings. It is discombobulating. When this is followed by litigation, the effect can be paralyzing. And the lawsuit felt like an assault. Being sued, even with the assurances that "it's nothing personal" and that my insurance would most likely cover any settlement, was in fact deeply personal. The experience was devastating."

In the case of OBGYNs, they are of course not only managing the health of one life, but two, in a field that is not an exact science by any measure.

The fear of litigation has changed maternity care. I believe most doctors care about their patients, but with insurance liability pressure and pressure from hospital administration they often cannot give fully evidence-based care, because evidence-based care is not always what holds up in court. What holds up in court is called Standard of Care. Standard of care in legal terms is defined as "the level at which the average, prudent provider in a given community would practice. It is how similarly qualified practitioners would have managed the patient's care under the same or similar circumstances." In essence, OBs (and other health professionals) are fairly bound by what their neighbor is doing. If they deviate too far from what their colleagues are doing and there happens to be a bad outcome, their liability risk increases tremendously.

So what does this mean for expectant couples? It means that the liability burden has been largely transferred to the mother. The fact that we have one-third of our nation's mothers now giving birth via cesarean section is evidence of this transfer of liability. She either accepts the liability in the form of increased interventions to her body, or she and her spouse accept the liability by verbally declining or signing waivers to decline interventions they feel they don't need and face being on oppositional terms with their care providers. Unless a couple has prior education about these issues, it is near impossible at the end of a pregnancy to question a recommended course of action, and certainly in the throes of labor with our level of vulnerability.

The most important factor in all of this is trying to figure out what is a true health concern (because, of course, they do happen!) vs. what has become legally risky.

(To be continued with Part II...)

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