Do Doctors Really Know Best? How Your OB/GYN's Fear of Malpractice Can Affect Your Healthcare

My doctor suggested a number of medical interventions prior to and during my labor, including induction and continuous electronic fetal monitoring. Had they been necessary?
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Written by Melinda Wenner Moyer for

Being wheeled down the hall of the hospital toward the operating room, I wasn't thinking about the constellation of factors that had led to that moment. Instead, I spent the minutes marveling at my incessant sobs. They'd started five minutes earlier when my doctor had announced, after 28 hours of medically induced labor, that I needed a C-section. The bawling wouldn't stop; it was making me hiccup and shiver as I lay otherwise motionless on the moving stretcher. I focused on the sobs because doing so was easier than considering that I was about to undergo major surgery, that I felt I was being robbed of a genuine birth experience, that I might not get to hold my baby for hours after his birth, that maybe I wasn't supposed to be having a C-section at all.

Less than a half-hour later, my fearful sobs were joyful. "It's a boy!" my doctor yelled (at the time, that was news to us), triumphantly holding my beautiful wailing son up for me and my husband to see. I was elated, relieved, and lucky -- my recovery was quick and easy. Yet in the weeks that followed, I felt unsettled.

My doctor suggested a number of medical interventions prior to and during my labor, including induction and continuous electronic fetal monitoring. Had they been necessary? Did they topple the first dominoes that ultimately led to my emergent surgery? I have no doubt that my doctor was trying to act in my and my son's best interest throughout my pregnancy and labor, and I thank him immensely for delivering him safely. But could some of his decisions have been driven not by true medical need, but rather by the pressures of an imperfect, over-litigious medical environment that rewards defensive practices?

A chilly climate
Obstetricians are the most frequently sued doctors in the country after neurosurgeons, and it's not uncommon for their settlements to exceed $1 million. According to a 2007/2008 survey conducted by the American Medical Association, 70 percent of obstetricians have been sued at least once. A malpractice lawsuit doesn't necessarily bankrupt an OB, because most have liability insurance to cover court fees and settlements. But suits are still painful, time-consuming, and embarrassing. Doctors have to report all claim payments to the U.S. Department of Health and Human Services' National Practitioner's Data Bank, which hiring hospitals, government agencies, and other health care organizations can access.

Naturally, then, OBs do all they can to avoid getting sued. In theory, this is a good thing: They don't work when overtired, try to communicate better with hospital staff and patients, and exercise caution when it's warranted, by, say, requesting extra ultrasounds for high-risk patients. "It's made doctors put a lot more emphasis on providing safe care," says Jennifer Keller, MD, an obstetrician at the George Washington University in Washington, DC.

But it also causes doctors to withhold information and lie. According to a survey of 1,891 practicing physicians published in February 2012, one-fifth of doctors had not told some of their adult patients about serious medical errors they made in the past year for fear of being sued, and one-tenth told their patients something blatantly untrue. And one major study reported that litigation pressure -- that is, the thread of being sued -- does not make doctors deliver healthier babies.

What's even worse, in some cases, is that the threat actually prompts doctors to stop delivering babies. In a survey of 5,644 OB/GYNs conducted by the American Congress of Obstetricians and Gynecologists (ACOG), the largest professional organization of OB/GYNs in the United States, 8 percent had stopped practicing obstetrics in the past three years because of litigation fears, high insurance premiums, or insurance unavailability. Though premium costs vary by region based on state laws and litigation risk, they can be as much as $200,000 a year.

In 2006, after 36 years of practice, Jay Trabin, an OB/GYN based in West Palm Beach, Florida, gave up his obstetrics practice to focus exclusively on gynecological services. "After a while, a doctor starts saying to himself, 'Why am I doing this?'" he explains. "I loved obstetrics - I delivered well over 5,000 babies. But it became such that there was so much worry involved, and the malpractice insurance was so expensive, I just couldn't do it anymore." It's not just individual doctors, either. In 2008, Long Island College Hospital, which is located several miles from my home in Brooklyn, announced that it was closing its obstetrics ward because of prohibitively high insurance premiums. The hospital was ultimately able to stay open only after a merger deal with SUNY Downstate Medical Center.

Liability concerns and high insurance costs may also scare medical students away from choosing obstetrics as a specialty. "It's definitely something that people consider when they're choosing what field to go into," Keller says. Trabin agrees. "It's common to see young doctors, highly skilled, simply opt not to do obstetrics for these reasons," he says.

The allure of surgery
In the 1960s, less than 5 percent of all U.S. births were by Cesarean section. In 2007, 31.8 percent of them were. Yet "the U.S. doesn't have better outcomes than other countries that have lower C-section rates," says Janet Currie, Ph.D., director of the Center for Health and Well-Being at Princeton University. American women are four times more likely to die during or immediately after pregnancy than are women in Scandinavia, Japan, Ireland, and Slovakia, among other countries. So why are doctors performing C-sections if they're not saving lives?

Fear of being sued may be part of it. Multiple studies, including one published in 2007 by Northwestern University researchers, have reported that Cesarean rates are higher in states where doctors face high malpractice pressure. In addition, 29 percent of OB/GYNs who completed the 2009 ACOG survey admitted that malpractice fears caused them to turn more frequently to surgery.

In some ways, it makes sense. Doctors can protect themselves in court by demonstrating that they took action to save or protect a baby who was ultimately harmed. A lawyer or judge might ask, "Did you do everything that you could have done? Did you err on the side of getting that baby out?" explains Carol Sakala, PhD, MSPH, director of programs at Childbirth Connection, a non-profit organization that promotes informed decision-making in maternity care. If doctors can show that they took special action -- by, say, performing surgery -- they may ultimately escape blame. According to a survey of 1,573 new mothers conducted by the Childbirth Connection in 2006, a quarter of women who had C-sections felt pressured by their doctors to do so.

A routine blood draw early in my pregnancy revealed that I had low levels of a protein called Pregnancy-associated Plasma Protein A (PAPP-A). A handful of studies have found a correlation between low PAPP-A levels and preeclampsia (high blood pressure during pregnancy), low birth weight, and sudden fetal death. Concerned, my doctor prescribed weekly fetal monitoring tests and blood pressure checks, as well as monthly ultrasounds to monitor my son's weight. Luckily, I didn't show any signs of high blood pressure as I reached full-term, and my baby was growing well.

Nevertheless, at my 36-week check-up, my doctor told me that he was going to induce my labor at 39 weeks. (Medical induction rates have shot up by 135 percent since 1990.) The reason? Every day that my son stayed in the womb beyond full-term was an opportunity for that last, most horrific outcome: sudden fetal death. My doctor didn't want to take any chances. But a close look at the scientific literature suggests that low levels of PAPP-A only predict fetal death when the baby isn't growing well. Given that my son was plumping up just fine, he was probably going to survive until he was ready to come out. But my doctor induced me anyway, despite the fact that medical inductions -- particularly in first pregnancies -- greatly increase the likelihood of C-sections.

The problem with Cesareans
If doctors are performing inductions at the risk of doing more C-sections, then C-sections must be safe, right? They certainly aren't as dangerous as some numbers might suggest. Many women have C-sections because of pre-existing conditions or complicated labors -- factors that predisposed their babies to problems in the first place -- so some of the dangers associated with C-sections are caused by these issues, rather than the surgery itself. Jennifer Berman, MD, a urologist based in Los Angeles, elected to have a Cesarean to deliver her second child in 2003 because her first child, born vaginally, was 9 pounds 8 ounces -- and she is 5'2". "It was really traumatic," she says. Though Berman experienced some complications from her surgery, she still believes that elective C-sections performed on low-risk patients are generally as safe as vaginal births.

Many experts, however, disagree. "There are lots of reasonable voices saying that unnecessary C-sections are bad," says Princeton's Currie. According to a 2011 review study published by Austrian researchers, low-risk women undergoing C-sections are much more likely to develop infections, lose significant amounts of blood, and have trouble breastfeeding than are women who deliver vaginally. In addition, according to a 2006 consensus statement released by the National Institutes of Health, even low-risk C-sections increase the risk of serious -- even fatal -- uterine or placental complications in subsequent pregnancies.

The other problem with C-sections is that they reduce a woman's chances of having a future vaginal birth. Although a 2010 National Institutes of Health report concluded that attempting a vaginal birth "is a reasonable option" for women who have had one prior C-section with a low horizontal uterine incision, very few doctors will perform these so-called "trials of labor" because of the less-than-one-percent risk of uterine rupture, which can require an emergency hysterectomy and (rarely) result in fetal death.

Indeed, rates of vaginal birth after Cesarean (VBAC) have dropped dramatically in recent years: Whereas in 1996, 28.3 percent of women with prior Cesarean sections delivered babies vaginally, by 2004, the rate had dropped to 9.2 percent. One 2011 study reported that in states in which malpractice pressure is high, VBAC rates are 40 percent lower than in states with low malpractice pressure. OBs who completed the 2009 ACOG survey agreed: A quarter of those who made changes to their obstetric practice in the past three years admitted that they stopped performing vaginal births after C-sections for liability reasons.

The problem, of course, is that repeat C-sections are often riskier than the alternative. "Many doctors are afraid because of that very teeny-tiny percentage of women who have uterine ruptures, so they go ahead and schedule another C-section," says Michele Deck, RN, a nurse and president of Lamaze International, a non-profit organization that promotes a natural, healthy, and safe approach to pregnancy. "But what they don't look at is the evidence of what that [surgery] does to a mother's body and her uterus, and what risk that poses for her second, third, or fourth birth." For instance, according to a 2006 study of 30,132 women published in Obstetrics and Gynecology, the risk of hysterectomy, bowel injury, blood transfusion, and ICU admission all increase with each subsequent C-section.

More than malpractice
C-sections are more common today for many reasons -- not just as a response to litigation pressure. Women are having children later in life, when complications that ultimately require surgery are more likely to occur. Some women actually ask for C-sections now because they can be scheduled. And surgeries are convenient -- and lucrative -- for doctors, too: Not only do they take less time, allowing OBs to deliver more babies in a year than they would vaginally, but most doctors are also reimbursed at a higher rate for C-sections than they are for vaginal births.

The bottom line is that doctors' decisions are shaped by myriad factors, many of which align with patients' best interests, but some of which may not. All obstetricians do ultimately want to deliver safe and healthy babies, but the choices they make in pursuit of that goal may not always be the most medically sound. I have suspicions -- particularly after talking to several other OBs -- that some of the decisions my doctor made were defensive, but I know that ultimately, things turned out well. In other words, I'm not really in a position to complain.

But there are things that can be done to improve the current situation. Read what Melinda suggests on Babble.

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