Malpractice 101 (and other scary stories surgeons tell in the dark)

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By Courtroom Mama

Last night, as I was browsing my favorite birth activist websites, I read the words “frivolous lawsuits” no less than three times, mostly in the context “if it weren’t for all those frivolous lawsuits, we could join hands with obstetricians and go skipping together into the daisies of a bright new tomorrow.” This is nothing unusual: so much as mention VBAC, and the issue of medical malpractice comes up. The fear among medical practitioners is palpable, and it has trickled its way into the conventional wisdom of birth advocacy. Whatever people might think about malpractice plaintiffs, defendants, or lawyers, it seems that “malpractice” is one of those concepts like “irony” – often referenced, frequently misunderstood. So I humbly offer an introduction to medical malpractice for the non-attorney.

First, a working definition:  Malpractice is professional negligence, that is, when a professional of some sort commits the tort of “negligence” by departing from the standard of care within the profession in a manner that causes foreseeable harm to a client to whom he has a duty. A tort is a private right of action for injurious conduct – this is important because an injured party without a right of action has a whole lot of nothing.

Important digression: if a person is beaten up by a stranger, it is probably a crime called assault or battery or something of the like depending on the jurisdiction. When this case is tried, it is probably going to be styled “People vs. So-and-So” or “State vs. So-and-So.” Markedly absent in this caption is the victim. Indeed, criminal justice is not really about the victim, who is just the complaining witness in the state’s case. The perpetrator is usually not directly accountable to the victim, who may have medical bills, lost wages, etc. Prosecution is about the perpetrator’s transgression against society.  Society is made whole (theoretically), but the victim just gets the satisfaction that a “bad guy” is locked up, or they can make a claim to an often dysfunctional victim compensation fund.

Kind of a bum deal. Such a bum deal that we, as a society, have come up with the idea of torts, the idea that a person should be made to pay for the harms that they cause others. Since we don’t have the stocks or the scarlet letter anymore, and you can’t force people to do nice things for you in restitution (pesky 13th Amendment), we use money as a surrogate. For the most part, there are pecuniary damages, or the straight up costs of the tort (doctor bills, lost wages, etc.), and nonpecuniary damages, a more nebulous concept of the pain and suffering cause by the tort (the pain, social isolation, other squishy stuff). There are two basic philosophies that undergird this system: restitution (to make the victim “whole”), and deterrence (to keep others from doing the same).

So if we have decided that it’s appropriate for me to have to pay you if I break your lawnmower, or run over your foot, or set your house on fire, why should a doctor not have to pay if he injures you? It happens. Medical errors are not joke; one case that sticks in my mind is one where a woman went in to have hemorrhoids cauterized (or something) and she was incorrectly prepped in such a way that when the cauterizing tool was turned on, it caused an explosion that literally caught her ass on fire.  Sometimes they cut off the wrong leg. Sometimes they leave surgical tools inside people (if you were awake for a cesarean, did you notice them counting sponges and clamps?). As for why you might want to hold someone who is doing such important work as healing responsible in tort — there used to be this doctrine, now defunct in most states, called “charitable immunity.” It meant that people who went to charity hospitals couldn’t sue, because beggars can’t be choosers, and you get what you pay for, and after all, who wants to sue the Sisters of St. Vincent de Paul? As it happened, people got really terrible care, and nobody really gave a fig because they were poor. Turns out that the deterrence factor makes a difference.

Question: if a doctor commits malpractice during a birth and the baby comes out with a permanent disability as a result, how much do you think it is going to cost the family to raise that child relative to how much it would have cost if the child were not born disabled? Will the parents magically start making more money to meet the shortfall? (in fact, if the birth injury is severe enough, one parent may have to stop working to care for a disabled child). How much will they have to pay in future medical costs? And remember how we’re having this debate about healthcare and how the costs are out of control and how more and more people are uninsurable because insurance companies are risk-averse? Of course healthcare reform is socialism/communism/facism/cubism, and much of the opposition to healthcare reform came in the form of claims that tort reform would fix our broken system, but this misses an important truth: people sue, in part, because malpractice is expensive for the victim.

Most people that I have spoken to are pretty comfortable with compensation for the cost of medical care and lost wages — the cost of fixing what is broken. Non-pecuniary damages, on the other hand, are a little more difficult to put a pin in, so they are often a target of people’s ire — after all, bad things happen to people all the time, and they don’t deserve to hit the lottery for it, do they? This view is so pervasive that some states have laws that place caps on non-pecuniary damages. However, Professor Lucinda Finley proposes in her article The Hidden Victims of Tort Reform: Women, Children and the Elderly, 53 Emory Law Journal 1263 (2004), that such caps have a disproportionate impact on women. Her research suggests that non-pecuniary damages are the greater part of women’s awards, and that to cap this form of damages limits the amount of money women can recover. This is, in part, because economic calculations such as future wages are made taking the gender pay gap for granted. Another factor is that there are certain injuries that occur solely or predominantly to women that are compensated through non-pecuniary damages because they don’t affect wage-earning capacity: sexual or reproductive harm, pregnancy loss, and sexual assault injuries. If we see only the economic harm that injuries cause as legitimate, what of harms to non-money-making aspects of people’s lives? Many of these types of harms, including impaired fertility, sexual trauma, and damage to intimate parts of the body, are implicated in birth cases. 

This is not to overlook the fact that malpractice insurance is expensive for the practitioner – by many accounts, prohibitively so. But the fact of high malpractice premiums does not alone prove that higher payouts are the cause of the rise in premiums. It doesn’t tell us anything about how many people are injured by malpractice and don’t sue, or how many sue but aren’t compensated. It doesn’t tell us how many cases settle out of court, and how many of those involve conduct that was, in fact, malpractice. In short, there is a whole lot out there that we don’t know about malpractice, and a lot of urban myths and horror stories that are repeated as gospel. Without actual data supporting these claims, we have know way of knowing whether physician’s fears of malpractice suits are justified—or perhaps more importantly, whether the lawsuits themselves are justified.

An illustration of the breakdown of critical faculties around such a sensitive issue occurred during the NIH VBAC Conference. In the midst of a multi-day conference dedicated to rigorous research and empirical evidence, when it came time to discuss medico-legal factors affecting medical practice, the speaker didn’t present statistics. Instead, he told an anecdote about someone who was sued and found liable simply because the victim was sympathetic. We agree that birth horror stories are not an acceptable basis for forming policies and procedures around labor and delivery, and we demand the evidence around induction, uterine rupture, macrosomia, etc.  It stands to reason, then, that we should also demand the evidence when it comes to claims of a malpractice crisis caused by a proliferation of frivolous lawsuits: especially when one person’s “frivolous lawsuit” is another person’s worst day. 



Courtroom Mama is feminist mother and attorney. She’s a birth/women’s health geek, a reproductive justice advocate, and an uppity woman of color.