California College of Midwives
UCSF Meeting July 30, 1999
Risk Reduction Strategies
Dr. David Rubsamen, MD, LL.B., an expert in the field of obstetrical liability and author of the Professional Liability Newsletter published for the last 25 years, has collected a sample set of 63 obstetrical malpractice cases involving permanent brain damage and subsequent litigation. In his book The Obstetrician’s Professional Liability -- Awareness and Prevention [1] he presents these cases as "instructive" and "cautionary tales" designed to acquaint readers with the malpractice traps that have made obstetrics a "loss leader" for liability carriers throughout the US. The absence of an on-site practitioner played a central role in a statistical majority of these malpractice cases (approximately 2/3s), particularly those which necessitated telephone conversations between nurses at the hospital and the doctor who was not. This gave rise to various forms of misunderstanding or miscommunication with adverse effects for the mother or baby. Major areas of conflict in accountability occurred in regard to what was said, whether or not a call was made and when the call was made.
"In obstetrical risk management, there is no single intervention which will be more effective than stressing the skill and status of labor and delivery room nurses. It is my impression that perhaps 25% of adverse outcomes (medical or legal) could be avoided* by either greater competence on the part of the nurse or when the nurse, recognizing a problem that is not being addressed, has the courage to forcefully represent the patient’s interests. * On the one hand, perinatal injuries would be reduced. On the other, if disability did develop, by demonstrating adequate care the defense might prevail." p. 83, [1]
In this regard, the major factors in malpractice litigation against physicians and hospitals can be categorized as follows:
1. Dependence on someone other than an experienced practitioner (e.g. another physician or professional midwife) to triage phone calls from childbearing women who are possibly or probably in active labor or having signs or symptoms of a complication (with associated continuity of care issues)
2. Obstetrician not physically present in the labor room or awake in the near vicinity of the laboring women. The mother may be in the hospital but the doctor is at home during her labor. Even when the doctor is asleep in the call room of the hospital, communication breakdowns occur as nurses may not recognize a serious situation, are hesitant to wake the doctor for what may seem like a "trivial" reason or this break in the continuity of care causes problems at a later time.
3. Communication breakdowns when the practitioner was not present during labor:
One or more nurses did not call at the appropriate time, did not recognize the seriousness of the situation, did not adequately record crucial information about the problem, or didn’t communicate important information to the obstetrician
One or more nurses properly performed all of the above in an accurate and timely manner but the doctor didn’t come when requested, didn’t believe the nurse, later claimed that he had never been called or was not called until much later
4. Failure of nurses to think/act as a practitioner -- did not carry out obviously necessary interventions that would be the "normal" duty (and liability) for professional midwives. L&D nurses are responsible for too many non-patient care tasks and competing duties to be able to provide continuous one-on one support for the laboring mother. In regard to the weighty function assigned to them, the nursing profession has been given too much responsibility without commiserate authority to act. Also high-level education and hands-on-training in practitioner skills needed to act independently is may be lacking. This can be corrected by cross-training interested L&D nurses in a nurse midwifery program specifically designed to lead to hospital employment.
5. Lack of truly informed consent, particularly in regard to the hazards of obstetrical intervention such as pitocin induction or augmentation. Additional failures of this type include lack of informed consent in regard to alternatives to obstetrical interventions or failure to identify a proposed procedure as an experimental therapy. "When there is a reasonable alternative treatment approach, the patient’s preference should be involved in the decision." [1]
6. The primary obstetrician did not communicate crucial information to another physician colleague, or other staff
7. The obstetrician depended on a less-than-perfect paper trail made by several different individuals and/or by a dis-articulated system instead of relying on continuity of care and personal presence