Download Medical Liability during Childbirth

Medical Liability during
Childbirth
Chrysanthi Sardeli, MD, PhD
Obstetrician-Gynecologist
Associate Professor of Pharmacology-Clinical Pharmacology
School of Medicine, Faculty of Health Sciences & Faculty of Law
Aristotle University of Thessaloniki
Having a child (or three…)
• Natural event (?)
• Multiple healthy (?) individuals involved (mothers, newborns, families)
• Great societal impact, involves whole population
• Leading cause of hospitalization & most expensive hospital condition
in the U.S. (overall & private insurers/Medicare)1
• Leading reason for ambulatory visits2
• Doctors/midwives/healthcare personnel involved
1 Agency for Healthcare Research & Quality, 2012
2 Sakala & Corry, 2008
Facts about Medical Liability
• Medical malpractice cases arise when a patient is harmed by a doctor
or nurse (or other medical professional) who fails to provide proper
health care treatment
• In order to meet the legal definition of medical malpractice, the
doctor or medical provider must have been negligent in some
way
The concept of negligence
• People should be reasonably careful in what they do, and, if they are
not, they should be held responsible for the injuries that can be
reasonably foreseen as resulting from their negligent conduct
Basic Requirements for a Medical Liability
Claim
• A doctor-patient relationship existed
• The doctor (or other medical professional) was negligent
• Failure to diagnose, delay to diagnose, improper treatment, failure to inform
of known risks
• The doctor's (or other medical professional's) negligence caused the
injury
• The injury led to specific damages
• Physical pain, temporary/permanent disability, mental anguish,
loss of income, additional medical bills, etc.
Epidemiologic data
• Chance of sustaining a negligent injury while receiving care in a U.S.
hospital
• As a childbearing woman: 0,6%
• As a newborn: 0,2%
• Negligent injury rate in hospital labor and delivery units: 0,8-1,8%
• Injury rarer but outcome more severe and worse for newborns,
receive more compensation in medical liability litigation
• Best available data, not replicated, gross underestimation of
incidence
• Approx. 2% of negligent injury victims sue (data not specific for
obstetric populations)
Epidemiologic Data
• Only 4% of all practicing physicians are obstetrician-gynecologists
• 13,7% of all closed claims relate to obstetric practice (1985-2005), 1st
or 2nd among 28 specialties
• Greatest number of outlier awards >$1 million
• Payout for settlements and awards on behalf of obstetricians at 9,5%
of all payouts (1991-2004)
• High insurance premiums, elevated level of malpractice concern
among obstetricians, feelings of injustice and resentment about
liability issues
Smart 2009, Caroll and Buddenbaum 2007, Yates 2012, Jena et al 2011, Public Citizen 2005, Carrier et al 2010
Medical Liability related to Pregnancy &
Childbirth
• Negligent preconception/prenatal care
• Negligence during childbirth & post-partum care
• Injury to the mother or child during pregnancy or delivery
• Emotional injury of the parents/other siblings/other family
• Wrongful birth (when the parents would have ended or avoided a
pregnancy if they had known about birth defects)
• Wrongful pregnancy (when the parents' attempt to avoid or end a
pregnancy fails)
Medical Liability related to Pregnancy &
Childbirth
• Misdiagnosis or delayed diagnosis
• Negligent preconception/prenatal care
•
•
•
•
failure to diagnose a medical condition of the mother
failure to identify birth defects
failure to identify ectopic pregnancies, or
failure to diagnose a disease that could be contagious to the mother's fetus
• Negligence during childbirth & post-partum care
• failure to anticipate birth complications due to the baby's large size or because the
umbilical cord got tangled
• failure to respond to signs of fetal distress
• failure to order a cesarean section when one was appropriate, or
• incompetent use of forceps or a vacuum extractor
• failure to anticipate post-partum bleeding
Medical Liability related but not limited to
Pregnancy & Childbirth
• Medication errors (very common)
• Wrong drug or dosage prescribed, wrong drug/dosage administered by nurse, equipment
malfunction
• Anesthesia errors
• Before induction of anesthesia
• failing to investigate the patient's medical history for possible complications, or
• failing to inform the patient of the risks involved if preoperative instructions aren't followed (like not
eating for a certain period of time prior to surgery).
• After induction of anesthesia
•
•
•
•
giving too much anesthesia to the patient
failing to monitor the patient's vital signs
improperly intubating patients (putting a tube in the trachea to assist with breathing), or
using defective equipment
• Surgical errors
• puncturing internal organs, operating on the wrong body part, or leaving surgical instruments
in the body) or the nursing staff might be negligent in administering post-op care
Preparing against Medical Liability during
Pregnancy & Childbirth
• Excellent skills and training, focus, teamwork, anticipation and correction
of adverse events, meticulous medical record keeping
• Communicate clearly the facts, ask & obtain patient sonsent
• Comprehensive Insurance Coverage
• Highly specialized and competent Legal Representation
• (Defensive Maternity Care Practice)
• ‘’Avoidance’’ of risk liability (limiting or withdrawing services to reduce risk)
• ‘’Assurance’’ practices to demonstrate efforts to avoid adverse outcomes
• Not so extensive as thought (low quality data)
• No relationship between liability measures and health outcomes (sparse
data)
Trying & Winning a negligence lawsuit
involving medical care
• A person who is injured during treatment must determine whether or
not they have been harmed by inadequate care
• A malpractice lawsuit must be brought within a legally prescribed
period (statute of limitations)
• When the injury occurred/when the injured person become aware of the
injury
• The person injured must show that they were actually under the care
of the physician (or other provider) they are suing
• Physicians (or other providers) owe a duty to their patients to use reasonable
care and diligence in their treatment, but do not have any duty to care for
members of the general public
Trying (& Winning) a negligence lawsuit
involving medical care
• The person injured must show that the physician (or other provider) did
not provide medical care that met appropriate standards
• Physicians must be held to a national standard for physicians practicing under
circumstances similar to their own
• Even if care was substandard, the person injured must prove that the
substandard care caused their injury
• Showing causation can be problematic (comorbidities, severe illness, multiple
providers)
• The injured person winning a medical malpractice lawsuit must be awarded
damages to an appropriate (?) amount
• Actual economic losses (lost wages and the costs of future medical care), and noneconomic losses (pain and suffering or the loss of companionship of a spouse or
child)
Trying (& Winning) a negligence lawsuit
involving medical care
• At present there is no EU-harmonized legislation on medical liability
• National laws and practices need to be consulted to determine
prerequisites, extent and possible ways of enforcement of such
liability
• Civil Liability
Trying (& Winning) a negligence lawsuit
involving medical care
• To trigger individual liability for medical malpractice and obtain
compensation for such damages there must be a causal link between
the medical treatment and a bodily injury suffered by the patient, as
well as any consequential damages
• The treatment must constitute a fault of the doctor, i.e. a violation of
his or her duty of care, which is at least negligent
• Doctor’s duty to inform patients of the risks of a medical intervention and
obtain the patient’s informed consent to the treatment
• Hospitals are normally also liable towards the patient for medical malpractice
of their staff
Medical Liability Issues
• The standards and boundaries of the notion of fault or negligence,
namely, when is the physician's conduct negligent, and according to
which criteria is it deemed so
• What is the standard of care and when is it violated
• The rules of evidence, and how they are modified to fit the peculiar
nature of malpractice claims, namely, which party has the burden of
proving what
German Medical Liability Facts
• Civil Law Country
• Medical malpractice claims are mostly settled with the liability
insurers, often after mediation services of the medical associations or
the social health insurers have given expert opinions -> low damages
• Only 8% of medical malpractice cases are litigated, 40.000/year
• Extensive case law, no juries, extensive social or private security
coverage
• Common causes of liability: defective treatment, wrong diagnosis,
wrong medication, lack of disclosure, and unauthorized treatment
Examples
• UK, Whitehouse v. Jordan
• Severe brain damage in male newborn following ‘’trial of forceps delivery’’,
allegedly due to negligent ‘’too long and too hard pulling on the baby’s head’’ by
the obstetrician
• The trial court found in favor of the plaintiff but the Court of Appeals reversed
the finding, because the obstetrician ‘’had not pulled too long and too hard’’ and
‘’even if the defendant had done so, this act would amount only to an error of
clinical judgment, which does not constitute negligence’’
• The House of Lords unanimously dismissed the plaintiff's appeal, stating that
there was insufficient evidence to ground a finding of professional negligence but
they stated that ‘’while some errors of clinical judgment "might be completely
consistent with the due exercise of professional skill," others "may be so glaringly
below proper standards as to make a finding of negligence inevitable’’
Examples
• USA, Jennings v. Badgett
• Plaintiffs are parents of a minor child born prematurely with complications. Dr.
Badgett was the treating physician during the pregnancy and delivery. During the
pregnancy, Dr. Badgett called Dr. Schlinke seeking his advice. Dr. Schlinke gave his
advice which Dr. Badgett followed. Dr. Schlinke never sees the patient, never sees
the chart, never conducts any tests, never is asked by the patient to be her doctor
and never agrees to be her doctor, never is asked to consult on the case, never
prepared any reports and never billed for his advice
• The trial court granted summary judgment that Dr. Schlinke owed no duty to the
patient as he was never the physician for the patient
• A physician-patient relationship must be established as a prerequisite to a
medical malpractice case, a telephone conversation between physicians does not
establish such a relationship
Ways to reduce Medical Liability Lawsuits
• Abolish the contingency-fee system for attorney compensation
• Establish caps for damages
• Eliminate expert witnesses for both sides and introduce expert panels
to advice the court, selected by the court
• Have the loser pay litigation costs
• PRACTICE GOOD OBSTETRICS, DO NOT PRACTICE TO AVOID
LITIGATIONS
• MORE CASES TO BE PRESENTED AND DISCUSSED
DURING LECTURE, IF TIME PERMITS AND NEED
ARISES FOR EDUCATIONAL AND DEBATE
PURPOSES
Remember!!!
• A lawsuit may be filed because it may be won, not because it has
merit!
• First do no harm – but also learn (as a physician or other healthcare
provider) to cope with mistakes as they are inevitable because to err
is human
Useful reading
• http://www.medicalmalpractice.com/Glossary-MedicalMalpractice.cfm
• http://www.coe.int/t/dghl/standardsetting/cdcj/CJSMED_en.asp
• https://www.loc.gov/law/help/medical-malpracticeliability/germany.php
• https://issuu.com/olinad_2005/docs/clinics-inperinatology_december_update-in-fetal-m
• Check also e-mail attachments