Are malpractice lawsuits really responsible for the rise in C-sections?

by Louise Marie Roth, PhD

About one third of all births in the contemporary United States occur via c-section.  Physicians and the public at large often attribute this to a “malpractice crisis,” whereby obstetricians perform c-sections routinely to avoid malpractice litigation.  Over the last couple of years, I have been conducting research on obstetric practices and malpractice.

One of the things that I have learned is that, like many “common sense” beliefs, the belief that a high risk of malpractice litigation has caused the rise in cesarean delivery rates is empirically false.

First, there is a myth that malpractice lawsuits have become increasingly common in American obstetrics.  The simple fact, however, is that cesarean rates in the United States have increased for 12 consecutive years, while malpractice litigation has remained the same or decreased.  Data from the National Practitioners Data Bank reveals that obstetric malpractice suits fluctuated from 1991-2004 rather than increasing over time.  (See graph below.)  This is not what one would expect if a malpractice crisis were causing the rise in cesarean rates.

Are malpractice lawsuits really responsible for the rise in C sections?

In addition to examining data on lawsuits, I am interviewing malpractice attorneys and birth attendants.  I interviewed “Jane,” a malpractice defense attorney (i.e. represents physicians) who has practiced for 15 years.  She said that the number of cases has declined over time because they are costly for plaintiffs and their lawyers to pursue:

In the beginning of my practice, they were going up because of fetal heart tracings. For the first time, the plaintiff’s counsel had something seemingly concrete to look at and to be able to point to. But in the last, probably six years, they have decreased. I think that’s because all types of cases have decreased… Basically, I think it’s that the cases have gotten so costly to pursue.

Another malpractice defense attorney, “Paul,” had practiced over 30 years and said that malpractice cases have declined overall by 30-40% in recent years, both locally and nationally.  He also viewed this decline as largely due to the high cost of filing suits and not tort reform, which his state does not have.  “The cost has also limited the number of players” so that there are few attorneys available to represent malpractice cases.  The only cases those attorneys take are those with clear liability and substantial damages that are likely to produce large awards.  As a result, many victims of negligence are unable to find a lawyer to represent them because of the costs.  The fact that the volume of cases has declined and only the clearest cases of negligence and malfeasance find legal representation contradicts claims that growing malpractice risks are leading to a rise in defensive cesarean deliveries,.

Secondly, in addition to my own research findings, there is published empirical research that reveals that malpractice liability is not the cause of rising cesarean rates.  Dranove and Watanabe found that obstetricians who experienced claims against themselves or heard about cases against their immediate colleagues increased their c-section rates for a very short period after the claim.  However, these increases were too small and too short-lived to cause the dramatic increase in cesareans that has occurred in the U.S. over time.  (Also, if suits are down in number, then this small effect should be present for a declining number of obstetricians over time.)

Recent research also suggests that tort laws influence cesarean deliveries in somewhat unexpected ways: reform of the Joint and Several Liability (JSL) rule (also known as the “deep pockets rule”) reduces cesareans, while caps on non-economic damages increase them.  This contradicts arguments in favor of tort reform, which suggest that capping non-economic damages will put obstetricians at lower risk of malpractice litigation and thus reduce the c-section rate.  In fact, cesareans increase when damages are capped and the risk of litigation is reduced – the opposite of what one would expect if a primary cause of the high rate of cesareans is litigation risk.

Also, cesarean rates decline when obstetricians are more accountable for the quality of care that they provide (reform of the JSL rule means that plaintiffs can only sue those who are directly responsible for negligence and not the organizations that they work for).  JSL reform tends to increase the connection between quality of care and liability, thus encouraging providers to be more careful. This suggests cesareans do not represent a cautious approach and may indicate poor quality care (Currie and MacLeod 2008).

In a nutshell, the idea of predatory trial lawyers might make a convenient scapegoat, but the actual risk of malpractice litigation has no effect on cesarean sections.  It seems more plausible that an unfounded fear of malpractice litigation leads to defensive practices that are totally out of proportion to the actual risk.  There is plenty of evidence for this fear.  A 2004 ABC interview revealed this:

In hospitals, the lawyers have bred so much fear that patients now suffer more pain, and may be less safe because doctors are concerned about being sued. “That fear is always there,” said obstetrics professor Dr. Edgar Mandeville. “Everybody walks in mortal fear of being sued.”

Similarly, a blog on Florida injury lawyers stated:

Some local doctors say that the surgery is a safer option for them than the risk of a botched delivery that could lead to a Florida medical malpractice lawsuit. The majority of obstetricians in the county no longer have liability coverage because it is too expensive.

Obstetricians interviewed by Wendy Simonds similarly expressed a tendency to intervene in birth because of litigation fears.  This fear may be felt as very real and may drive behavior, but the data are clear: fears of litigation are largely not grounded in actual risk.  Moreover, these fears do not justify subjecting millions of women to unnecessary surgery, which violates medical ethics and pregnant women’s human rights.  Practitioners’ fears would not justify this even if malpractice litigation were as common as people believe.

Louise Marie Roth is an Associate Professor of Sociology at the University of Arizona and author of Selling Women Short: Gender Inequality on Wall Street. This post originally appeared on The Unnecesarean.

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  • Drashish

    Anyone ever notice it’s always the PhDs that say medical costs have very little to do with malpractice cost, never a person who makes the medical decision at the point of care, in my mind the only true person who knows how threats of malpractice influence decision making. Yet Another example of academics publishing stats devoid of reality

  • BladeDoc

    So let me try to get this straight. It’s not the malpractice suits that are the big deal it’s the doctors being AFRAID of them that are the problem. And vice-versa the fall in lawsuits have nothing to do with the rise in C-sections because your friends the lawyers said so.

  • http://www.skepticalob.com Amy Tuteur, MD

    Recent data shows that 77% of obstetricians will be sued at least once during their career. Exactly what percentage of obstetricians should be sued before it is “evidence based” for them to fear malpractice suits?

    Prof. Roth’s interpretation of her data is seriously flawed. She has pointed out a negative association between the C-section rate and malpractice filings and announced that this means obstetricians are ignoring the “evidence.” But the fact that the rate of malpractice filings has stabilized as the C-section rate has risen is more likely to reflect the fact that defensive medicine is accomplishing its goal of reducing lawsuits, not that obstetricians are not paying attention to the evidence. Moreover, it indicates that malpractice filings are an inappropriate metric for determining the impact of malpractice suits on obstetricians.

    • IMDoc

      Look again at the chart. 1991-1996 saw a relatively stable c-section rate while malpractice claims varied minimally up and down. When c-section rates started rising in 1997, there was a parallel rise in malpractice rates. This also occurred from 2001-2004. The only exception was a decline in 2002. Certainly, your claim that increased c-section rates have “stabilized” malpractice claims and defensive medicine has succeeded in its goal is not born out by the above data. Obviously, looking at a few time points of two measures and attempting to make some sort of causation/non-causation argument (as both you and the original post attempt to do), is an unscientific exercise in futility. Who knows, you may be right – the malpractice rate could have been much higher if c-section rates had remained constant, effected by some confounding variable not accounted for in the chart. Or maybe we’ll see the effect when the chart is carried out to 2020 (given the ridiculously long statute of limitations in these cases). Unfortunately, there’s no evidence presented above to support any real conclusion.

  • Jerry

    Your graph appears to contradict the lawyer’s perception, “malpractice cases have declined overall by 30-40% in recent years, both locally and nationally.”

    However, I do agree, it is fear, that drives the CS rate. To those of us who have suffered the injustices of false accusations, it is a real fear. The criminal and civil justice system are based upon fear. It is a fear of prosecution, fear of loss of livelihood, fear of loss of reputation, and a fear of failure to defend yourself adequately in the face of a judge who is almost always is a lawyer too. It is a fear of taking on any risk and then meeting a lawyer, looking for a pot of gold at the end of their rainbow. There is no longer a belief that they are looking for justice. There is no belief that plaintiff lawyers do what they do, for the justice of it all. With a three year law degree, they become a soul-wrenching tormentor of the physician striving for the health of a newborn.

  • http://www.bryantsstatisticalconsulting.com Donald Tex Bryant

    It would seem to me that a good place to start with proving that the malpractice suit rate has nothing to do with CS is to interview several OB’s in several geographical regions and in several settings, either OB’s as part of a hospital group or OB’s in independent practice. Then, armed with some background information one could propose a reasonable hypothesis about the rise in CS rates.

  • http://www.MDWhistleblower.blogspot.com Michael Kirsch, M.D.

    Even if the author is correct that OB-GYNs are reaching for the scalpel from unfounded fears of litigation, this indicates the pervasive negative influence of the medical malpractice situation. It may be easier for a sociologist to claim that our fear is ‘unfounded’ than it is for an obstetrician who may be held liable until the child is 18 years old.

  • paul

    funny how the opinion that you’re not gonna get sued so stop worrying about it universally comes from people not in the crosshairs themselves.

  • Karen

    I find it telling that so many of you are defensive, and seem not to care about the consequences of surgery, and they are many, including compromised reproductive capacity. However, tort reform, (of “deep pockets” being one,) is not the only way to lower cesarean rate. A local hospital lowered it’s cesarean rate by requiring doctors to justify early term inductions, BEFORE, their patients came to the hospital.

  • elmo

    Dr Roth
    You cite a graph that shows essentially stable malpractice rates. Then add lawyer ancedotes about how the malpractice rate has decreased 30-40% (does this really make sense to you?). On top of that add other lawyer blog comments as evidence? I wil leave the comments about usefulness of fetal heart tracings to the OB’s in the audience but as someone who has spent significant time in academic medicine I find the evidence for your argument rather minimal. Good look on your publication.

  • Marc Gorayeb, MD

    Remember; this is a sociologist. You know, one who practices social science. I would love to be notified when she publishes her study in a peer-reviewed journal. I am anxious to review the entire article myself, and to dissect its methods, results, statistical analysis and conclusions.

  • jsmith

    Are burglars really responsible for people locking their doors? A lot of people think so, but this is empirically false. Studies have shown that when people forget to lock their doors at night, most of the time they do not get robbed. So it is this irrational fear of being robbed, not actual burglaries, that is responsible for the epidemic of door locking that we we see in this country.

  • http://davidbeharmdejd.blogspot.com David Behar, MD,EJD

    Pass a law immunizing OB’s for not performing a C-section. The overwhelming majority of C-section lawsuits are false, based on the testimony of clueless, inexperienced liars, working in academic medical centers. Such immunity would injure a tiny number of plaintiffs with legitimate claims, perhaps in the dozens. Yet, it would spare millions of women surgery, and the taxpayer, $billions. Support for such legislation is a test of the sincerity of the author.

  • Donna Carrillo Lopez

    I worked in Ob during a simpler era when populations were less diverse, pre-morbid issues yet undefined, patient oversight more reliant on close observation and clinical intuition, and an era when defensive medicine was not so intensively on the cognitive perceptions of every practitioner. This is a different era and defensive medicine is important whether it is from the perspective of defining performance-based models or even where tort reform law has passed and civil litigation used to replace it. These are complex times and this issue should be pondered through the lens of quality-based, individualized medicine against the backdrop of present realities…along with relevant stats.

  • PAULMD

    A contributor to the massive costs and financial bubble of the post secondary educational system is the employment and salaries of the “Ph.D” class of American citizen.

    We and our children are incuring unsustainable levels in educational debt, much because of the insatiable appetites of Ph.Ds and the myriad of superfluose avenues of study they offer.
    Womens studies, minority studies, social studies, classics, literature, psychology (the advent of this pursuit alone has contributed the most to the, “you want fries with that”, debt laden college graduate).
    I would enjoy a weblog that allowed physicians to spew unsubstantiated vodoo opinions about what is best for Ph.Ds.

  • http://myheartsisters.org Carolyn Thomas

    Back in the dark ages when I was having my own babies (1977 and 1980), studies on C-section frequency rarely mentioned the threat – real or perceived – of potential litigation as a deciding factor.

    What the studies that caught my attention did mention at the time was that Friday afternoons appeared to be the most popular day and time for these interventions!

    Sounds to me much more like obstetricians merely wanting a head start on their weekends….

    I find the defensive tone of the docs responding to this post very interesting. Not one is choosing to address the actual issue, which is:

    There are too many C-sections being performed!

    The World Health Organization claims that anything over a 15% rate of C-section is too high.

    We know that long, inefficient labors often result in C-sections, yet some doctors may actually contribute to that long, inefficient labor by using drugs to get labor started before the mother and baby are physically ready.

    And if the baby is “in distress”, a physician may recommend inducing labor. But a study out of McMaster University reported: “Induction of labor is currently the most important correctable predictor of C-section.”

    Both doctors and women today have much less tolerance for the slow labor that nature intended. More women now request and receive epidurals, which can lead to an inefficient labor and then a caesarean delivery.

    Rather than just “shooting the messenger”, it might be useful for some of you to actually come up with a possible solution to the problem.

    • BladeDoc

      We have a solution. Immunize the OB from failure to perform a C-section lawsuits. This has the added benefit of being a great experiment and would do much to end the whole defensive medicine arguments once and for all depending on whether C-section rates start falling. It’s a heck of a lot more workable than OBs should just “get over it.”

      Not an OB but I’ll tell you right now that I would cut my CT scan ordering by at least a third if I thought that I wouldn’t be sued for missing the 1/1000+ operative CHI from low-speed MVCs or ground level falls. Not even to mention the tons of “unnecessary” neurosurgery consults for neck pain with negative CT C-spine or MRI for an obtunded patient with a negative CT to clear the collar.

      Bonus points – guess my specialty!

      • Matt

        Why stop there? Why don’t we literally immunize everyone from everything they’re afraid of?

        “Not an OB but I’ll tell you right now that I would cut my CT scan ordering by at least a third if I thought that I wouldn’t be sued for missing the 1/1000+ operative CHI from low-speed MVCs or ground level falls.”

        Do you have any idea if you have actually reduced your risk by doing all these CT Scans? And if so, to what degree? If you don’t, why are you doing them? Or at least why are you doing so many?

        I think that’s the point of the original post. It’s knee jerk reaction to a risk you don’t understand.

        But you ask for immunity. Well, in many states physicians said if they got caps things like defensive medicine would go down because they’d be less afraid. Presumably that would apply to C-sections as well. Has it worked? I’m betting the answer is no.

        • http://davidbeharmdejd.blogspot.com David Behar, MD,EJD

          Matt: Will you or will you not support the statutory removal of the privity obstacle to lawyer malpractice claims by adverse third parties? The filing of a weak case is lawyer malpractice. 80% of medmal claims are weak. Allow the doctor victim of lawyer carelessness to be made whole after the measurable, tangible, devastating damages of a false lawsuit. These will always include extended treatment for doctor PTSD. To deter.

          The lawyer has lawlessly and arbitrarily dealt itself legal immunity from torts, a privilege no one else has. A privilege that hurts the lawyer profession reputation by allowing the filing of false tort claims. If you oppose immunity for failure to do a C-Section, oppose this privity obstacle, too. To deter.

          I am going to make a wild prediction. You wish to preserve your total immunity for the devastating damage done by irresponsible, incompetent, medmal lawyers.

          I would like to see a patient injured in a C Section sue the medmal lawyer, causing a tsunami of C-Section in their state after obtaining huge, ruinous verdicts by suborning false expert testimony. The biased judge allowing such cases to proceed should also be deterred with aggregate claims on behalf of all victims of defensive medicine. End all judge immunities from class action lawsuit, as well.

          • Matt

            Why would I support a claim against any party who has no duty to that person? Would you as a physician support permitting claims by parties who you have not taken on as a patient against you?

            You assume the filing of a lawsuit (distinct from an insurance claim, by the way) means the filing party knows all the facts at the time of filing. Yet one cannot compel discovery from the other side without the filing.

            You say “80% of med mal claims are weak”. You fail to define “claims” or how you arrive at the “weak” definition. So that really means nothing.

            A lawyer does not have legal immunity from torts. That’s patently false.

            And spare me the “devastating damage” nonsense. It’s overwrought. Particularly when contrasted to the damage caused by actual medical malpractice. What, you had to sit through a trial? Your insurer paid a claim? Oh, the humanity.

        • BladeDoc

          Well, I’m not sure how to measure that with the effect of caps. I will state unequivocally that the cost of med mal insurance has gone down in those states such as Texas and Minnesota (and GA prior to it being struck down). I am unsure if there’s been a long enough run to see if unnecessary testing has decreased.

          And my point is that it doesn’t matter if it’s a kneejerk response. The perception IS the reality and the problem becomes real. And yes pretty much anyone around the med mal world knows that failure to diagnose is one of the big risks whereas overtesting brings minimal risk.

          • Matt

            You can also state unequivocally that malpractice insurance premiums went down in states without caps. Point? We’ve had nearly 4 decades of caps in California, and at least 20 years in many other states – how long do you need to see that something doesn’t work?

            Perception is NOT reality. Perception is just that – perception. Are you really arguing we make policy based on someone’s inadequate understanding of their risk?

  • imdoc

    Excellent Blade Doc. Now that would be real research.

  • yeah right

    Caesarian sections cost more than vaginal delivery. This is the elephant in the living room that absolutely no one has the guts to confront.

    Until someone can prove beyond the shadow of a doubt that money is not what’s driving these unnecessary C-sections, I will continue to prove that money is what’s driving them.

    I know. Let’s pass a law forbidding doctors and hospitals from charging more for a C-section. Make both modes of birth cost the same, and see what happens. We don’t even have to do it everywhere, just do it in a couple dozen major metropolitan hospitals. That should do the trick.

    I’ve had both a vaginal birth and a section and at no time during either birth was any effort made to let me be a more active participant in bringing my children into the world. I was to lie down in a bed and let them monitor me and boss me around and that was it. One child was born in ’96, the other in ’04, by the way–this was not the dark ages of the Fifties. A visiting nurse after the birth of my second child, the section birth, made some passing comment about my daughter “lying on the cord” during my labor. I have to guess she saw my records. A simple change in position would have solved that problem but oops, I had an epidural in my back. No change of position for me!

    And why *would* a doctor make a proactive effort to discourage interventions that might prevent a section if a section means a bigger paycheck? They can always blame malpractice suits if anyone questions their preference for major surgery. And we’re just women after all, and it’s not like we’d die without our uteri even if something did go wrong. Oh well!

    (I’m waiting, just *waiting* I tell you, for some “routine major surgery” to put a man’s testicles or prostate at risk. Maybe then they’ll get it. I know there are more women OBs in this country now but be honest, who’s teaching most of them?)

  • yeah right

    *continue to prove = continue to BELIEVE, I wish we could edit comments. Bleh.

  • doctor

    The author’s “evidence” is anecdotal. As far as time lines, remember that there is often a significant interval (as we all know, up to 21 years) from incident to lawsuit filing, so you can’t make the kind of conclusions the author does. Fear of lawsuits is one of a number of factors leading to a high cesarean rate- others include patient request/patient not wanting to continue labor, a higher multiple gestation rate, a higher percentage of older primigravida women, and a lower vbac rate. All of these factors, including the liability issues, contribute.

  • imdoc

    Good insight Dr Behar. So now that the research in England purporting to link vaccines and autism is found to be a fraud, should not the tort lawyers filing all the claims apologize profusely and pay back all the parties damaged by the lawsuits? I would also include the plaintiffs as they were given false information, and any others who may have been damaged by not getting needed vaccines.

    • Matt

      Weren’t the lawyers relying on information provided by physicians?

      • ninguem

        Nuremburg defense.

        • http://davidbeharmdejd.blogspot.com David Behar, MD, EJD

          Imdoc: Good insight into the aims of product liability. A product, the lawsuit, turns out to be defective, those harmed should be compensated as a substitute for violence. In the case of a delivery gone bad, the brothers and husband of the dead mother come over to the doctor’s house with bats and beat him. People have done that. So, liability is good for the lawyer, because the obverse is true. If torts substitutes for violence, then immunity fully justifies violence. I would not want any of my lawyer good friends exposed to such antics.

          If the lawsuit turns out to be false, what is wrong with compensating all doctor victims with the assets and insurance of the lawyers?

          • http://davidbeharmdejd.blogspot.com David Behar, MD, EJD

            Matt: Getting back to lawyers and adverse third parties. And this is strictly from your 1L courses.

            There are dozens of duties of the lawyer to the adverse third party. They are enumerated in the statutes covering the Rules of Conduct, the Rules of Evidence, the Rules of Civil Procedure and the Rules of Criminal Procedure. Then there are dozens more in common case law.

            That means that any violation of these Rules makes the lawyer conduct not only tortious but tortious per se. Per se means, automatic, no proof of malfeasance need be offered. Skip to the setting of damages. For example, if I go through a red light, and hit a pedestrian, no trial need be held on my negligence. It is automatic because I violated a law. So if any lawyer violates any of these Rules, the legal malpractice is per se, and the hearing can move on to assessing damages. Example. There is a Rule of Conduct prohibiting the filing of unmeritorious claims, such as one which contained a bad outcome for the patient, but not a deviation from professional standards. Per se lawyer malpractice. The lawyer needs to make whole the doctor victim of his carelessness.

          • Matt

            What is a “false” lawsuit?

          • Matt

            “There are dozens of duties of the lawyer to the adverse third party.”

            Such as?

            ” Example. There is a Rule of Conduct prohibiting the filing of unmeritorious claims, such as one which contained a bad outcome for the patient, but not a deviation from professional standards. Per se lawyer malpractice. The lawyer needs to make whole the doctor victim of his carelessness.”

            Are you equating losing a case with a complete lack of merit for a case? And aren’t you assuming all facts about the case are known at the time of filing? How is that possible?

            And a violation of the Model Rules does not equal a tort. You’re incorrect.

  • NEMO

    And why *would* a doctor make a proactive effort to discourage interventions that might prevent a section if a section means a bigger paycheck?

    The physician receives the exact same “global delivery fee” whether you deliver vaginally or by c-section. There are two levels of “global delivery fee” – a low-risk pregnancy and a high-risk pregnancy.

    It is the hospital fees which rise with a c-section – due to use of the OR, the OR nursing staff, the additional anesthesia, the longer stay in the hospital, the additional monitoring post-delivery, etc.

  • PAULMD

    I often ask myself, why is it that we as a profession continue to treat, cure and prolong the life of those that aim to do us harm? It really doesn’t seem natural.

    • Matt

      You mean your patients? I don’t know if you’ve ever looked at a lawsuit, but it’s the patient suing you for malpractice.

      You don’t have to be a physician, but if you are you will need to treat them to get paid.

  • http://davidbeharmdejd.blogspot.com David Behar, MD, EJD

    PaulMD: I know that if you had the lawyer who had sued you in your clutches after a bad injury, you would be classy enough to treat him to the best of your ability. He would feel an inch tall, you, ten feet tall after your saving his life.

  • PAULMD

    Dr. Behar,
    I don’t do life saving procedures so I cannot take that credit. I don’t know if I could help someone that intentionally attempted to destroy my life and put my family at risk. It would be easy and comfortable to say that I would “man up” and do what you refer to as “the classy” thing to do but I’m not so sure of the ease of doing so. I feel justified in having little regard for such people.

    There are plenty of folks that would do as you say, I honestly don’t think that I am one of them.

  • imdoc

    PaulMD: All due respect, but we treat all because it is duty and it is humane. Even if your adversary does not feel “an inch tall”, it is not about that. It is about integrity. Not trying to be sanctimonious, just reinforce the professional ethic. I suspect in the real situation you would wind up doing the right thing.

  • http://davidbeharmdejd.blogspot.com David Behar, MD, EJD

    For a review of lawyer duties to the adverse third party, some in listed in the law, see:

    http://supremacyclaus.blogspot.com/2007/05/ending-lawyer-immunity-from-legal.html

  • PAULMD

    @imdoc,
    You may be right, I personally have never been truly tested. Remove the trial lawyer aspect and replace it with comments made previously about emergency care in flight and the risks involved. Many said that they either would not get involved or wished they had not. Others had the opposing opinion. It was not universal.

    It is not a great analogy as the emergent patient in flight, we presume, had no prior negative history with the physician as I am implying with the trial attorney. Yet the risk remains. Treating the trial attorney that may have dragged me through a personal hell and telling me “don’t take it personally” is different. It is worse.

    The scorpion always stings the fox….because it is his nature. Nature would find the fox foolish after his first sting if he repeated his poor decision making wether motivated by moral, ethical or professional drivers. I would prefer never to be stung and if given the opportunity, would feel an obligation to remove the risk of ever being stung to my ilk. No threat is implied, just that I will not let someone elses moral structures drive me off the cliff. I am very comfortable with my compass as are others who know me personally and professionally and make no apologies.

    • Matt

      Why is it the attorney’s fault that your patient sued you, and that another physician testified that you committed malpractice? I realize the attorney has a part to play, but he is only 1/3 of the equation at best.

      It has nothing to do with your moral compass. Sometimes you make mistakes, and those mistakes have consequences. They cost people money, and it’s money maybe your insurer doesn’t want to pay.

      • http://davidbeharmdejd.blogspot.com David Behar, MD,EJD

        It is 100% the fault of the vicious lawyer predator, and that of no one else, that 80% of claims have no merit and abuse the system. There is collusion by the defense bar, in never counterattacking these vicious predators. (I see no difference between plaintiff and defense bars in their dangerousness.) They are the proximate cause of the doubling of medical costs, all medical errors, preventable by investigation and changes to the system of care. Name a social problem, a lawyer has been its architect to generate more government sinecures. Crime, bastardy, sluggish economic growth. All have lawyers as causes.

        If a doctor has made a mistake, the average doctor wants to offer the patient an apology and a settlement offer. That is the reason to carry insurance, for the imperfect performance. In the overwhelming fraction of cases, the lawyer claim is one for a bad outcome, not preventable by human means. In most other cases, the injured patients is a non-adherent addict who caused his own problems by out of control irresponsible behavior. The lawyer seeks to enrich himself, and only himself, turning away the majority of cases that have merit, and were the result of malpractice. The lawyer files false cases, and turns away good cases that just happen to be unwinnable in his opinion.

        The lawyer profession is the biggest criminal syndicate in history. It is run very tightly by a hierarchy of about 15,000 people. It has totally infiltrated and controls our government, making 99% of policy decisions. Elected officials are figureheads under their control. I would like to see direct action groups of patients and families of patients take the war to the lawyer. So far no one has really answered the devastation caused by this profession.

        • Matt

          ” that 80% of claims have no merit and abuse the system.”

          Since you haven’t defined “claims” that really doesn’t mean much. Anyone can file a claim with an insurer. You don’t need a lawyer.

          “If a doctor has made a mistake, the average doctor wants to offer the patient an apology and a settlement offer.”

          Really? You sure about that? If the average doctor makes a mistake, and hundreds of thousands in damages result, you think they want to make that offer? With whose money? Oh yeah, their insurers. Guess what, that’s the insurers money. They run that show.

          • Doc99

            Insurers settle out all the time on case that are potentially winnable. Some of the insurers’ costs involve … legal fees.

          • Matt

            And insurers take cases where they have liability to trial all the time. Your point?

  • Matt

    “. I don’t know if I could help someone that intentionally attempted to destroy my life and put my family at risk.”

    Being a little melodramatic don’t you think? Because your insurer might have to pay a claim your life is destroyed and your family is at risk? Really? If you run over a guy in the street today, and it’s your fault, would you treat the lawyer who represented the guy you ran over? Or do you just stop driving altogether?

    • Doc99

      And that’s the standard that should be required for a plaintiff’s malpractice verdict – Gross Negligence.

      • Matt

        Why? Why should your treatment have to fall to that level in order to be compensated?

  • PAULMD

    Matt,
    No, I am not being melodramatic. I choose to reduce my risk to myself and others as I walk through my life. Sometimes !@#$ happens. In your world, sometimes when !@#$ happens….SOMEONE MUST PAY…because you represent justice.

    Clearly you would not want me as your physician and I would not be comfortable with you as one of my patients. It is good that we have choices.

    I have many attorney patients that I see and sometimes perform procedures on and have, what I feel, are good, solid professional relationships. I like them as people and they have displayed REASONABLE behavior and expectations. These characteristics trump their threat to me as lawyers. Some are local, state and federal judges, prosecuters, business lawyers, and yes, med mal plaintiffs lawyers. I guess that makes me a hipocrit, but I can live with that.

    • Matt

      Sure you are Paul. There are physicians with multiple judgments still practicing. There are physicians with convictions for drug abuse still practicing. The chances of you paying any amount of a judgment out of your pocket are virtually nil, unless you’re operating drunk or high.

      But since you believe in reducing your risk – do you ever speed? How about look down to turn the radio when you’re driving? Talk on your cell phone while you drive?

      You’re right, sometimes stuff happens. That’s why we carry insurance. If the trucker crossing the intersection fails to see the light turn red and slams into you, your medical bills, and lost wages, and lost quality of life have a value. And he, or his insurer, need to pay it. Do you disagree that’s justice?

      Why wouldn’t you want me as your patient? Because I think people ought to pay for the harm they cause? (I’ve handled a total of 3 or 4 malpractice cases in my life, all clear liability). You’ve never met me, never seen the cases I handle, but you assume that I’m unreasonable? If you make that many assumptions based on things you know nothing about, then you’re right, I don’t want you as a physician. I want someone who has the facts before they reach a conclusion.

      • Doc99

        Physicians evaluate patients in real time, prospectively. Cases are often fluid, requiring quick judgement and best guess. Potential liability cases are viewed retrospectively with the outcome known. Cases are static with plenty of time to review evidence.

        • http://davidbeharmdejd.blogspot.com David Behar, MD, EJD

          This defense has never been raised to my knowledge. What Doc99 describes is called Outcome Bias, a formal error of critical thinking and a violation of the procedural due process rights. Even defense experts are subject to it.

          This list of other Cognitive Biases should be a checklist for the doctor defendant. He must then hire a legal malpractice lawyer to terrorize the defense lawyer into starting to assert these legal rights. Being subjected to one of these biases is no more acceptable than being subjected to racial bias.

          http://en.wikipedia.org/wiki/List_of_cognitive_biases

        • Matt

          And? If you’re struck by a car today, that happened in real time. When you sue the other driver for your injuries, should we dismiss the claim because we’re viewing it retrospectively with the outcome known?

          • http://davidbeharmdejd.blogspot.com David Behar, MD, EJD

            No, Matt. This is a bias. It means it has no empirical support. It is a human tendency to blame, especially when the outcome is really bad. So cerebral palsy is caused by a viral infection, but you find s sloppy record or some other irrelevant mistake. The tendency even among experts paid to support the surgeon is to feel the doctor blameworthy.

  • Jim ( UK )

    With respect : data can say what you want it to say .

  • http://davidbeharmdejd.blogspot.com David Behar, MD,EJD

    Bottom line. Matt wants to be able to sue everybody. He wants no one to be able to sue him. The courts have upheld this outrageous, unjust condition. The judges are lawyers and totally biased against the public interest, when it comes to lawyer liability. They are outrageous like the courts that immunized the genocidal lynch mobs that murdered 5000 black people, and seized their assets for themselves. (That is correct, the lawyer founded and run KKK lynched mostly rich blacks and Jews, took their assets.) The slaughter rate is 10 times larger and every year in our case. These false claims prevent the reduction of medical errors by internal investigations and system changes. The health entities have an obligation to survive, and every word of any investigation report will be used against them in weak claims.

    OK, lawyers say, torts is a substitute for violence. That is a good thing. In formal logic, the obverse of a true proposition is also true, automatically. That means, immunity justifies violent self-help in every intellectual, moral, and policy way possible, automatically,without discussion.

    • Doc99

      “Some will rob you with a six gun.
      Others do it with a fountain pen.”
      Woody Guthrie

  • PAULMD

    @Matt,
    You and I exist on this site as limited self projections, so in effect, the decisions reflect the best information available at the time. The impression I have formulated would lead me to stand by my decision that I would not want the “Matt” as portrayed here on KevinMD as a patient of mine.

    I am not saying that you are unreasonable, I do,however, have red flags flying as I don’t share your opinion of what is reasonable. What I find insulting about your reasonableness is the strict adherence to the facts in the retrospectoscope of situations that obey no mathematical nor physical certainty.

    Inherent to what you do and what I have seen of your beliefs regarding med mal, you have a callous disregard for recognizing and attributing results of medical interventions as probabilities of better situations than if left untreated. Therefore, in this cyberworld of opinion, with my interpretation of your beliefs, you are a risk not worth taking.
    Not having your “business” is a “loss of opportunity” that I am sure I will survive.

    I am also pretty sure that I would be able to hire one of your own to make the case that you are being medically/legally/personally negligent and that I will suffer a loss of opportunity in not being able to treat and charge you. I would, may have had a better outcome.

    Please don’t take it personally.

    • Matt

      “Inherent to what you do and what I have seen of your beliefs regarding med mal, you have a callous disregard for recognizing and attributing results of medical interventions as probabilities of better situations than if left untreated.”

      Why would you say that? I have issued no judgment on physicians in any particular case. My only position is that rendering judgment without the facts is foolish. So when I see someone second guessing the result of a week long trial based on a 500 word newspaper article, I think that’s irresponsible. I would expect you would agree.

      The whole “retrospectoscope” line is silly. Is your argument that we should never compensate past harm because it is just that – past. Therefore it’s not fair to judge someone by looking back?

      I don’t really care if you treat me or not. Especially if you’re someone who draws such firm conclusions on such limited evidence. In fact, I’d prefer you not if that’s the case.

  • Donna Carrillo Lopez

    Here is a good article to ponder on this issue. In this case, it is a country with the reported highest stats in Latin America for c-sections, Brazil: Torloni, MR< Daher, S., Bertran, AP et al, "Portrayal of Caesarian section in Brazilian women's magazines: 20 year review": BMJ 2011: 342:d276. The authors speak about the somewhat troubling popularization of C/S and the omitting of short term and long term medical issues (perinatal and maternal risks) around caesarian sections.

  • http://supremacyclaus.blogspot.com Supremacy Claus

    C-sections cause greater rates of asthma in infancy and diarrhea requiring hospitalizations. So they are not entirely benign beyond the post op period.

    Brazil happens to be another country that has a very high density of lawyers. Thank the lawyer for the poor, wheezy baby with diarrhea.