Malpractice Liability Burden in Midwifery: A Survey of Michigan Certified Nurse-Midwives

Xiao Xu, PhD; Jody R. Lori, CNM, MS; Kristine A. Siefert, MPH, PhD; Peter D. Jacobson, JD, MPH; Scott B. Ransom, DO, MPH, MBA

Disclosures

J Midwifery Womens Health. 2008;53(1):19-27. 

In This Article

Results

Sample Characteristics

The 145 respondents who were currently engaged in clinical practice in Michigan were all female and were certified as nurse-midwives. The majority (93.8%) were non-Hispanic white. Very few (1.4%) had graduated from a nurse-midwifery program from another country, whereas 30.3% had graduated from a nurse-midwifery program in Michigan. The remaining 68.3% were from a nurse-midwifery program in another state within the US. On average, the respondents had practiced in Michigan for 11.4 years (standard deviation [SD] = 7.6; range, 0.2-33.8). Fifty-five percent stated that they spend at least 40 hours per week in direct patient care (mean = 37.3 hours per week; SD = 17.6; range, 2-90).

Respondents' primary offices were located in 28 of the 83 counties in Michigan, mostly in metropolitan counties. Only 1.4% had a primary office in a completely rural area or a county with less than 2500 urban population (based on the Department of Agriculture Economic Research Service classification scheme;[29] Table 1 ). Fifteen percent of the CNMs identified their primary practice site as a public clinic or a federally qualified health center. Nearly one-third (31.7%) of the CNMs' primary practice was hospital affiliated. Most (85.2%) provided obstetric care at the time of survey, whereas 11.3% had previously provided obstetric care but had stopped by the time of the survey. Of the 16 CNMs who reported having practiced obstetrics previously, eight had discontinued attending deliveries after 2000.

Those respondents who currently included obstetrics in their practice had on average practiced as a CNM for 12.8 years and attended 75 births during the past year. Nearly half of them had more than 50% of their obstetric patients covered under Medicaid. Moreover, 5.1% stated that over 50% of their obstetric patients had high-risk pregnancies (high-risk was self-defined). Among respondents who currently attended births, 24% said they attended deliveries in hospitals affiliated with a university, whereas 41.3% attended deliveries in a community hospital with a family practice and/or obstetrics residency training program and 27.9% in a community hospital without a family practice or obstetrics residency training program. Of the remaining seven respondents who said they usually attend births in other settings, five were in freestanding birth centers and/or at home. This is consistent with national data, indicating that the majority of CNM-attended births occur in hospitals (97% in 2003).[3]

Medical Liability Burden

When asked about their professional liability insurance, seven CNMs (4.9%) reported going bare, or without coverage ( Table 2 ). Five of them said that it was extremely difficult to obtain coverage, and the other two reported it was somewhat difficult. In addition, four of them were in solo or two-provider practice. Most CNMs were covered through an employer -- only 7.0% had to purchase liability insurance themselves. The average premium rate for self-purchased coverage was $11,131 (95% confidence interval, $4,114-$18,149). With regard to claims experience, 35.2% reported having a malpractice claim filed against them at least once in their career. Most of these claims (66.0%) had been within the last five years. A total of 17.6% had made some payments for malpractice claims, including jury verdicts, settlements, or arbitration awards either paid by themselves or by someone else on their behalf. Another 3.5% had no malpractice payments made previously but currently had claims pending. Most payments were at least $30,000, a threshold used in California for malpractice payment reporting as well as discussed previously in the literature as a plausible threshold for reporting of malpractice claims into the NPDB.[30,31,32] Overall, medical liability concerns were generally perceived as having a negative impact on CNMs' clinical decision making. Twenty-one percent reported a moderate degree of negative impact, and 8.0% reported a great deal of negative impact.

Eleven percent of those currently practicing midwifery had moved from private practice to salaried employment over the last 5 years, and 3.3% had relocated their practice to reduce malpractice insurance cost. Patterns of change in providers' work hours over the last 5 years were mixed: 20.7% had reduced the number of hours they worked, whereas 44.6% increased the number of hours. Compared with Michigan CNMs who obtained malpractice insurance through an employer, a significantly lower proportion of those who purchased coverage independently or practiced bare provided obstetric care to patients (87.2% versus 70.6%; P = .04; Table 3 ).

Defensive Practice

In terms of defensive practice, 11.4% of the respondents felt that the average nurse-midwife would always use more diagnostic tests than might be medically indicated due to malpractice concerns, and 38.6% said that the average nurse-midwife would usually do so (Figure 1). Likewise, 10.8% of the respondents felt that an average CNM would always introduce interventions earlier than might be medically necessary and 31.7% indicated "usually." This was followed by early referral to specialists, performance of more treatment procedures, and request for more follow-up visits, which were reported by 40.0%, 35.7%, and 34.2% of respondents, respectively, as being usually or always practiced. Among the listed activities, fewest respondents reported defensive practice related to medication prescribing.

Figure 1.

Participants' perceptions about the frequency of defensive practice in nurse-midwifery. Respondents with missing data on the variable were not included. For any one of the activities, the proportion with missing data did not exceed 4.1%.

Career Satisfaction

The vast majority of Michigan CNMs expressed satisfaction with their overall career in health care ( Table 4 ). However, 18.9% said that they were somewhat more dissatisfied compared with 5 years before, and another 4.9% were a lot more dissatisfied. In addition, 31.0% of the respondents indicated that they were less interested in obstetric care than when they first started practicing midwifery, although 16.9% said that they were more interested in obstetrics now. These changes in interest were not related to the number of years the CNM had practiced obstetrics (correlation coefficient = 0.13; P = .15).

Clinical Implications

Michigan CNMs attended 7898 births in 2002 -- over 6% of the total births in the state.[25] As one of the "caution" states (i.e., states that are showing signs of developing a liability crisis) declared by the American Medical Association with regard to its medical liability climate,[33] there is legitimate reason to be concerned about the current malpractice burden among Michigan nurse-midwives and the potential impact on their practice. In contrast to national data reported in 1982 showing only 5% of nurse-midwives had ever been sued,[34] the present study indicates that 35.2% of practicing Michigan CNMs had been named as a defendants in medical malpractice claims by 2006, and 15.5% had made malpractice payments of $30,000 or higher. Although a small proportion, some CNMs (4.9%) were practicing bare due to difficulties in obtaining liability insurance coverage. Nearly 70% of CNMs in this survey reported liability concerns as having a negative impact on their clinical decision making.

These findings are consistent with the limited evidence available. Benedetti et al.[35] found that in the state of Washington, the average liability insurance premiums for CNMs increased from $5948 in 2002 to $10,952 in 2004, up by 84%. A mail survey of obstetrician-gynecologist practices in southern New Jersey also reported that some CNMs had annual premiums as high as $13,000 in 2003, compared with $2500 to$4000 in earlier years.[16,21] Many of the recent birth center closures in the Washington-Baltimore area have cited rising malpractice insurance premiums as one of the driving factors.[36] In addition, data from the NPDB showed that since September 1990, there had been 349 medical malpractice payment reports on nurse-midwives as of December 2002.[37] This number increased to 516 by December 2005.[32] The median claim payment made on behalf of nurse-midwives between 1990 and 2005 was $225,000.[2]

Experience from previous malpractice crises suggests that excessive medical professional liability insurance problems could have a significant impact on nurse-midwives. At the peak of the last crisis in the 1980s, malpractice policies were either unavailable to nurse-midwives or prohibitively expensive -- with premiums as high as $15,000 to $30,000 compared with their average annual income of about $25,000 at that time.[38] During this crisis, many midwives had to increase the number of patients they saw to increase practice revenue. This undermined the tradition of midwifery care in terms of time spent with patients and triggered practice of a more defensive posture.[21,39] A 1987 telephone survey of CNMs in rural Arizona found that 10% of CNMs were going bare because of the prohibitively expensive premium rates, and another 10% said that they had been prevented from practicing in rural areas due to the malpractice insurance problem.[40] These prior experiences shed light on the potential influence of the current malpractice crisis on midwifery care in the US.

In addition, a recent review article on midwifery care showed that midwives serve a high proportion of disadvantaged populations, including adolescents, racial/ethnic minorities, Medicaid beneficiaries, and women who are less educated, unmarried, or residing in rural areas or health professional shortage areas.[6] A large proportion of payments (44%) for CNM care is from Medicaid, which tends to have lower reimbursement rates.[41] Compared with other obstetric providers (obstetricians/gynecologists and family physicians), CNMs are paid a lower salary and are unable to offset lower insurance reimbursement with higher paying procedures such as surgery,[17,18,36] limiting their ability to absorb large increases in malpractice premiums. Moreover, as reported elsewhere, 22% and 15% of CNM respondents to the current survey study reported risk of malpractice litigation and difficulty in affordability/availability of liability insurance, respectively, as high impact factors for their decision of whether to include obstetric care in their practice.[28] If there are indeed excessive medical malpractice burdens for nurse-midwifery care, it may exert a worrisome influence on patient care, especially for vulnerable populations.

Rising malpractice premiums also add more complexities to midwifery practice, driving up the cost of midwifery care and potentially undermining collaborative working relationships with physicians and hospitals.[21,34,39] Some professional liability insurance companies impose premium surcharges on physicians working with nurse-midwives, which could also impact collaborative partnerships.[39] In addition, when the malpractice climate is aggravated, many hospitals require nurse-midwives to obtain a large amount of insurance coverage before granting practice privileges.[34] However, data from the 2006 American College of Obstetricians and Gynecologists found that nurse-midwives were named in only 3.8% of malpractice claims against obstetricians/gynecologists.[42] There is also evidence suggesting that a lower number of medical malpractice claims are brought against physicians who work with CNMs compared with those who do not.[43]

Another important finding of this study is the substantial amount of defensive practice reported by CNMs. Each unnecessary test or procedure may pose added risk for the patient (e.g., complications and side effects of treatment resulting from false-positive diagnostic tests).[15] Fear of malpractice lawsuits could also deter timely reporting of medical errors, putting patients at further risk.[44,45] The potential adverse effects of defensive practice may be even greater in obstetric and midwifery care than in other clinical areas, because there are patient safety implications applicable to both the mother and the infant.

Defensive practice also has financial implications. In the US, an estimated $70 billion to $126 billion was spent on defensive medicine each year.[46] This excessive cost may limit the capacity to provide health care programs for the uninsured, such as the Medicaid program, which covers over 40% of US deliveries.[47]

Several limitations of the study should be acknowledged. First, because the data for this study were collected as part of a larger project to assess the influence of medical liability issues on obstetric care, focus of analysis was placed on the obstetric care component of nurse-midwifery practice. How other aspects of nurse-midwifery care may be influenced by malpractice pressure was not addressed. Second, it is difficult to accurately measure the practice of defensive medicine.[24,48] In many clinical situations, there is no definitive answer regarding the optimal amount of care that should be provided. Data reported here were based on providers' own perceptions of what might be medically necessary. Third, the survey targeted providers' experience with medical malpractice issues. The effect of the malpractice climate on patient access to care and patient safety, especially among disadvantaged populations, was not directly assessable. Fourth, findings from this study were based on data from Michigan, and conditions in other parts of the country may differ. Finally, the cross-sectional design of this study precludes inferences regarding changes in the malpractice climate for nurse-midwives in Michigan (e.g., increasing or decreasing burden). Instead, the study provides good baseline data for future research in this area.

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