Maternity Care and Liability: Pressing Problems, Substantive Solutions

An Executive Summary

Carol Sakala, PhD, MSPH; Y. Tony Yang, ScD, LLM, MPH; Maureen P. Corry, MPH


February 28, 2013

In This Article

Synopsis and Introduction


This [executive summary covers a] report that summarizes the best available research about the impact of the health care liability system on maternity care, and policy strategies for improved functioning of the liability system in maternity care.[1] It draws on maternity-related empirical legal studies and health services research when available and other studies when unavailable. Improved understanding of these matters can help transcend polarized discourse, guide policy intervention, and address persistent shortcomings.

The best available research does not support a series of widely held beliefs about the impact of the liability system on maternity care, including the economic impact of liability insurance premiums on maternity care clinicians, the existence of extensive defensive maternity practice, and the impact of limiting the size of awards for non-economic damages in a malpractice lawsuit. In the practice of an average maternity caregiver, negligent injury (meeting legal criteria for malpractice) of women and newborns appears to occur more frequently than any claim and far more frequently than a payout or trial. Women may be more likely to sustain negligent injury than newborns, while newborn injuries overall are more severe and are more likely to be handled by the legal system.

Recognition that the liability system is not serving well childbearing women and families and providers and payers of maternity care services led us to identify seven aims for a high-performing liability system in this clinical context. We held 25 improvement strategies that have been proposed and/or implemented up to these criteria and found that 15 strategies have not been found to be effective in addressing needs of diverse stakeholders and/or are unlikely to do so. A series of maternity-specific studies found that the effectiveness of tort reforms is at best modest and limited in scope. Ten strategies appear to have promise to improve liability matters across multiple aims. These health care, tort alternative, and liability insurance reforms are stronger candidates for demonstration, evaluation, and refinement to prevent injury or assist women, babies, and families when it occurs. They also hold promise for reducing liability-associated stressors of health professionals and improving the value of maternity care to payers. An appendix summarizes many important gaps in knowledge relating to maternity care and liability, and another provides summary fact sheets on key questions of interest to diverse stakeholders.


This report assesses both the impact of the liability environment on maternity care in the United States and strategies for improving this environment. Traditional aims of the liability system are to deter harm and compensate those who sustain negligent injury. Maternity care is a major segment of the health care system impacting the entire population at the beginning of life and 85% of women who give birth once or, more typically, multiple times. Combined care of childbearing women and newborns is the nation's most common reason for hospitalization. It is also the most costly hospital condition for all payers, private payers, and Medicaid, and these payments include costs of liability.

According to measures of claims, payouts for damages, and liability insurance premiums, providers of maternity services are at high liability risk relative to those in most other clinical areas. Professional liability issues are persistent sources of concern among policy makers and discontent among maternity care providers. It is crucial to ensure that the liability system fosters access to and the quality of all vital maternity services, including those of general obstetrician-gynecologists, maternal-fetal medicine subspecialists, family physicians, midwives, and care in hospitals and freestanding birth centers.

A broad investigation of maternity care liability issues has not been carried out since the Institute of Medicine issued a report in 1989, when limited sound quantitative data with few maternity-specific investigations were available to inform liability matters and the health care system differed in many respects from present conditions. This report provides an update of maternity care and liability by summarizing maternity-related research within the growing body of empirical legal studies, health services research, and other relevant data in the context of more recent conditions of the evolving health care, legal, and liability insurance systems. Medical malpractice policy making frequently has not been guided by best evidence, and such focus can help the various stakeholders move beyond polarized adversarial discourse, competing beliefs and ideologies, and gridlocked decision making to better understand the issues and identify and move toward substantive solutions.