Malpractice Suits Continue to Put Ob/Gyns on Defensive

September 12, 2012

September 12, 2012 — Despite some easing of malpractice litigation pressures, most obstetrician/gynecologists are still taking defensive actions such as seeing fewer high-risk patients to avoid getting sued, according to a new survey from the American Congress of Obstetricians and Gynecologists (ACOG).

This retrenchment bodes ill for women, especially as more of them gain access to healthcare under the Affordable Care Act, ACOG officials said.

"When physicians limit what problems they treat, which surgeries they perform, or what services they continue to provide, it creates significant hardships for patients," ACOG Deputy Executive Vice President Albert Strunk, MD, said in a press release.

The ACOG survey of its members revealed that 51.1% made at least a single change to their practice from 2009 through 2011 as a result of the high cost or availability of malpractice insurance. Among those practicing obstetrics, 18.1% saw fewer high-risk obstetric patients, 15.1% performed more cesarean deliveries, and 13.5% stopped performing vaginal birth after cesarean delivery. Of those practicing gynecology, 12.4% performed fewer surgeries and 5.2% dropped major operations.

The picture was worse in the previous ACOG medical liability survey (released in 2009), which showed that 59.2% of obstetrician/gynecologists were making such defensive moves in response to malpractice insurance issues. The improvement since then could reflect a decline in insurance premiums, and the 2012 ACOG survey suggests as much: Physicians said they spent 12.4% of their gross revenue on malpractice premiums, down from 18% in 2009. The publication Medical Liability Monitor has charted a decline in premiums for obstetrics/gynecology, internal medicine, and general surgery in aggregate from 2008 through 2011.

Slight Decrease in Physicians Reporting Claims

The latest survey includes indicators of a slightly less scary world of medical liability. The percentage of obstetrician/gynecologists who reported a claim in the preceding 3 years decreased from 45% in 2009 to 42.3% in 2012. The average amount for all paid claims — resulting from either a settlement or jury award — tapered off from $512,049 in 2009 to $510,473 in 2012. Likewise, the average payment for a neurologically impaired infant decreased from almost $1.1 million to $982,051 during that period.

Have all these statistical trends made obstetrician/gynecologists less anxious? That could be the case: The percentage of obstetrician/gynecologists who said they had altered their practice because of the risk or fear of getting sued decreased from 62.9% in 2009 to 57.9% in 2012.

Still, malpractice litigation is causing a clear majority of obstetrician/gynecologists to restrict what they do. Some have moved to states and cities considered less litigious or have become employees of hospitals and other large institutions to protect themselves, according to ACOG.

"Our survey results show no overall improvement in the medico-legal environment," said ACOG President James Breeden, MD. "Ob/gyns continue to significantly limit their services and change how and where they practice due to the unreasonably high risk of litigation in our profession."

45% of Plaintiffs Receive Some Kind of Payment

The ACOG survey sheds light on why patients sue. The most common primary allegation in obstetric claims (28.8%) was a neurologically impaired infant, followed by stillbirth or neonatal death (14.4%). The leading cause of gynecological claims was major injury (29.1%). Number 2 (22.1%) was either failure to diagnose or a delayed diagnosis. Roughly 4 in 10 of those diagnostic claims involved cancer.

Most patients who sued never received a dollar. Of the closed claims reported in the survey, 29% were dropped by the plaintiff, 3.7% were settled without any payment on behalf of the obstetrician/gynecologists, and 11.2% were dismissed by the judge. In 38.7% of the closed claims, the parties settled, with the plaintiff receiving money.

The remaining 17.4% of the cases were resolved by a jury or court verdict, or else by some form of alternative dispute resolution. In these proceedings, the plaintiff went home with money 34.4% of the time. When settlements in which money changed hands are tallied, roughly 45% of plaintiffs in all received some kind of payment, and roughly 55% did not.

Physicians lose even when plaintiffs lose, noted Dr. Strunk.

"Meritless claims can take several years to resolve and cost the ob/gyn almost $50,000 to defend," he said. "Moreover, the severe psychological stress associated with the process can affect the physician's ability to practice both during and after the claim has been resolved."