Denise Condron, Director of Loss Prevention, CMIC. The relationship between a doctor and his or her patient is created when a patient knowingly seeks the. There are liability issues physicians should consider when Define the minimum requirements to establish the doctor-patient relationship also advise physicians to make sure their liability insurance covers telemedicine. Central to any discussion of the doctor-patient relationship for medical malpractice in Societies with universal social insurance schemes.
Below is a brief summary. The essentials of EFM devices were developed inand by the end of that year there were 1, systems in place in the United States. Initially, EFM was thought to be a useful means of detecting asphyxia.What are the Most Common Reasons Doctors Get Sued?
It was believed that its use would lead to an amelioration of asphyxia and the prevention of birth injury, because it would permit the obstetrician to deliver the baby surgically, if necessary. A survey in revealed that 77 percent of physicians believed that all labors should be electronically monitored Heldford et al.
In facilities with monitors the monitors were used in 86 to percent of deliveries Thacker, A study of upstate New York birth records indicated that 47 percent of all live births were accompanied by some form of EFM Thacker, By75 percent of New York State live births were being monitored electronically D. Mayack, personal communication, The current national natality survey includes detailed questions about EFM; results will be reported in Thacker, As a tool, EFM was easy to learn, imposed little change on practice style, replaced a seemingly imperfect method, and appeared at a time when new technologies were being readily accepted in many sectors of society.
EFM had strong advocates in the national and international obstetrical communities. Many leaders of the academic obstetrical community were at the forefront of EFM use, and they communicated their enthusiasm in respected medical journals and at professional meetings. The use of EFM spread rapidly, both in academic medical centers and among individual practitioners. Despite the widespread use of EFM in the early s, the results of the first U.
Insome seven years after EFM became a widespread technology, a National Institutes of Health NIH consensus panel concluded that it was potentially beneficial in all pregnancies, should be strongly considered in high-risk pregnancies, and that intermittent auscultation was equally acceptable for use in all pregnancies NICHHD, New procedures and treatments to be tested in experiments are regulated by the Department of Health and Human Services if the experimenting institution is funded by the federal government in whole or in part.
These regulations require the institution sponsoring the research to establish Institutional Review Boards to evaluate research on new procedures and treatments [45 C. Clinical innovation falls between standard practice and experimentation. Although many sectors of the health care enterprise have an interest in the safety, effectiveness, cost-effectiveness, and social, ethical, and legal impacts of new and innovative health care technologies, evaluation of these concerns is ad hoc and irregular.
Many commentators have worried about the absence of controls in innovative procedures and technologies Cowan and Bertsch, The committee found that the organizations and institutions that were in a position to evaluate EFM failed to do so before its use became widespread. The NIH and industry provided generous financial support to the developers of modern EFM but did not provide support for the clinical trials to evaluate it.
Third-party insurers, such as Blue Cross and Medicaidwhich are in a position to evaluate new procedures, failed to question the efficacy of EFM before setting their reimbursement rates for the procedure. To date, there have been nine such trials, conducted in Australia, Denmark, Ireland, Scotland, and the United States see Thacker,for a detailed comparative analysis. Not a single RCT has shown a statistically significant decrease in the rate of prenatal death, intrapartum stillbirth, neonatal death, one-minute Apgar score of less than 7, one-minute Apgar score of less than 4, or frequency of neonatal intensive care unit admissions as a result of the use of EFM.
These studies suggest that EFM has simply not done what its proponents argued it would do: However, a follow-up study of 39 infants born in Dublin who had seizures in the neonatal period showed no neurological difference at one year of age between infants monitored electronically and those monitored by auscultation Thacker, The dilemma posed by these findings is compounded by the finding that EFM had no measurable benefit for highly restricted groups of high-risk deliveries Leveno et al.
It is a group of diverse, nonprogressive syndromes in which the brain is affected in such a way that motor function is impaired; quadriplegia and hemiparesis are characteristic manifestations; and mental retardation, seizures, and dystonia may be present.
Until recently, cerebral palsy was thought to be linked to abnormal parturition, difficult labor, premature birth, and hypoxia or asphyxia of the infant.
The committee evaluated more recent data that cast serious doubt on the correlation between presumed hypoxia and later cerebral palsy. In a series of reports published during the past decade, Karin Nelson and Jonas Ellenberg have analyzed data concerning cerebral palsy obtained during the National Collaborative Perinatal Project of the National Institute of Neurological and Communicative Disorders and Stroke Nelson and Ellenberg,, Approximately 54, women participated in this prospective study, which was carried out between and in 12 teaching hospitals in the United States.
Detailed histories and laboratory studies of the mothers and their babies were obtained. Pediatric and neurological examinations were done at 1 and 7 years of age. The outcome at 7 years was known for 45, children born as singleton infants of 51, pregnancies. In a univariate analysis of risks associated with cerebral palsy, Nelson and Ellenberg found that the characteristics associated with the highest relative risk were newborn seizures, respiratory distress syndrome, aspiration, being in an incubator for three or more days, and having an Apgar score of 0 to 3 at five minutes listed in decreasing order Nelson and Ellenberg, However, there were almost identical rates of risk factors in children without cerebral palsy.
None of these factors accounted for a statistically significant percentage of cerebral palsy. Subsequent multivariate analysis found no factor arising in labor or delivery to be a major predictor of cerebral palsy.
Of the cases studied, 69 percent did not have even one clinical marker of asphyxia. Of the 21 percent that did, 58 percent had an alternative explanation for the cerebral palsy congenital malformations, birthweight of less than 2, grams, microcephaly, or some other. The only important risk factor for cerebral palsy in a baby weighing more than 2, grams at birth was severe fetal bradycardia; less than 2 percent of the children with cerebral palsy had that risk factor.
The rate of false positives among high-risk predictors was 97 percent, except in the case of babies weighing more than 2, grams, where the false positive rate was 99 percent Thacker, Nelson and Ellenberg conclude ''We do not know the cause or causes of most cerebral palsy Consistent with these conclusions was a recent NIH review of the matter, which also concluded that the cause of the majority of cases of cerebral palsy is unknown Nelson and Ellenberg, Electronic Fetal Monitoring, Cerebral Palsy, and Medical Malpractice Although the data relating EFM use to medical liability concerns are limited, it appears that the initial acceptance of EFM technology was fueled in part by such concerns.
Moreover, the current professional liability climate supports the continued use of EFM, despite overwhelming evidence that it does not improve neonatal mortality and morbidity rates. A recent study conducted by the Risk Management Foundation found that close to two-thirds of closed claims were related to EFM and documentation Risk Management Foundation, The legal literature suggests that EFM has become the accepted standard of care in many jurisdictions.
The allegation of "failure to monitor" is commonplace in plaintiffs' medical malpractice complaints. Hospital attorneys routinely advise obstetricians both to use EFM and to save the tracing tape in case a claim is made Schifrin et al. The committee heard numerous reports that cerebral palsy cases are frequently litigated and that either failure to respond to the EFM tracings or failure to monitor was a frequent allegation in them.
The insurance data reviewed by the committee confirmed that indemnity payments related to claims for neurologically impaired children comprise more than 27 percent of all indemnity payments paid GAO, ; Medical Underwriters of California, One malpractice insurer, Physicians Insurance Association of America, calculated that cerebral palsy is the second highest diagnosis following breast cancer in total indemnity in obstetrics and gynecology Medical Underwriters of California,with payments averaging hundreds of thousands of dollars.
Although the causes of neurological impairment in infants are largely unknown, birth-related events do not appear to be strongly implicated.
It is estimated that there is a 5 to 10 percent incidence of neurological handicaps in the entire population. Not all these people require medical, educational, or social services, but a substantial number do. These needs may be part of the impetus behind the malpractice claims.
Physicians Insurance - Professional Liability, Health & Commercial Insurance
Conclusion EFM, initially developed as a means of detecting fetal asphyxia and preventing its destructive effects, has continued to be used in most deliveries, despite the fact that for almost a decade randomized clinical trials have failed to demonstrate its efficacy.
The incidence of cerebral palsy, still popularly and erroneously believed by many to be the result of fetal asphyxia, has not been reduced by EFM. The available evidence suggests that professional liability concerns have contributed to the continued use of EFM. Not only is there no demonstrated benefit of EFM, it is costly. The frequency of operative deliveries, primarily cesarean sections, has been linked statistically to use of EFM.
In addition, there are the costs attending patient morbidity induced by surgery. Practice Patterns in Departments of Obstetrics Noting individual practitioners' reports of practice changes brought about by liability concerns, the committee inquired early in its deliberations whether the perceived risk of malpractice litigation was also causing changes at the institutional level, that is, in departments of obstetrics at university hospitals and academic medical centers.
Since there were no available data to answer this question, the committee undertook an informal letter survey of the members of the Association of Professors of Gynecology and Obstetrics who are heads of obstetrics departments. Its purpose was to make a preliminary assessment of whether departments of obstetrics at academic medical centers were, in fact, making changes in the patterns of the delivery of care at an institutional level that had implications for access to and delivery of care.
The committee received letters containing both data and opinions about how the current medical liability climate has affected the practice of obstetrics in university hospitals and academic medical centers.
Even though all respondents noted a change in practice climate and greater awareness of legal issues, some department heads reported no changes in institutional policy as a result.
The responses of many, however, made it clear that both the rising cost of medical malpractice insurance and the overall climate engendered by medical liability issues have brought about changes in the practice and procedures in departments of obstetrics, the organization of academic obstetrical departments, the teaching of residents, and in the organization of obstetrical practice generally.
In addition, a number of respondents noted impediments to access brought about by the problem of obstetrical liability. Reported Changes in Practice The most commonly reported change in practice was the increased frequency of cesarean sections. Most respondents were disturbed by this trend but felt unable to stem it because of the risk of malpractice suit. As one department head put it: For many years, a standard part of my teaching to medical students and residents had been to perform only medically and obstetrically indicated cesarean sections, uninfluenced by other considerations such as inconvenience, time of the day or night, interference with office hours, monetary gain, or threat of malpractice.
I can no longer in good conscience continue to teach the latter principle when the practical results may be a multimillion-dollar suit that can ruin a career and a lifetime of study and service.
Social Media, the Doctor-Patient Relationship, and Liability
Because the survey letter specifically mentioned as an example that at least one academic obstetrical department had implemented a policy of delivering all breech fetuses by cesarean section, many respondents addressed this issue, reporting that they, likewise, had implemented such a policy. Other practice changes reportedly brought about by the professional liability climate included avoidance of midforceps delivery, decrease in the frequency of outlet forceps deliveries, increased antepartum testing, increased documentation, and increased use of consultation and referrals for "high-risk" and "potential high-risk patients," often solely for the purpose of avoiding litigation see Table 5.
Another commonly cited response was increased use of continuous EFM during labor, even for low-risk patients: The sole purpose of such surveillance may be only to provide a heartbeat-to-heartbeat credible objective record for defense purposes in the event of future litigation. Reliance on these methods of fetal surveillance by attending physicians deemphasizes by role modeling example the appropriateness of bedside clinical evaluation and clinical judgment.
Many respondents acknowledged that some changes motivated by professional liability have led to better patient care. In particular, many respondents commented that better documentation and increased physician-patient discussion have undoubtedly enhanced patient care.
Other beneficial changes included an increase in the use of consultation for high-risk cases and the requirement that faculty remain in the hospital, available to residents, 24 hours a day. An increase in regionalization of obstetrical care was reported, with increased use of computer networks for evaluating antepartum data and fetal heart rate tracings; these were believed to be positive changes as well.
Respondents reported increased reliance on standard protocols for obstetrical management, which may or may not improve obstetrical care. Finally, a formal procedure for certifying residents was initiated in some programs, including delineation of their specific operative privileges and experience. Implications for Training Many respondents indicated that the current professional liability climate in obstetrics is adversely affecting the teaching and training of obstetrical residents.
Many also mentioned the increasingly common phenomenon of residents being named as codefendants in malpractice cases. Moreover, because of the continually increasing cost of medical malpractice insurance, some respondents reported a diminished participation by part-time obstetrical faculty in the education of residents. There was considerable concern that the current medical liability climate is preventing obstetrical residents from assuming sufficient responsibility to meet their educational needs.
As one respondent commented: The present academic atmosphere is such that residents have to be virtually watched in every single activity that they do. I am not convinced in all cases that there is any advantage to such careful supervision, although, admittedly, in some cases there is.
My concern is that our "baby birds" will never be pushed from the nest until they go into private practice, since we give them such little latitude. Some expressed concern that this attitude of secrecy sets an example for the residents and other health professionals that they will carry with them into practice. Other changes included revisions of rules and regulations to restrict further the activities in which residents can engage and to reduce the participation of medical students in obstetrical training.
One respondent reported that, as a response to the current professional liability climate, "We have closed our Morbidity and Mortality Teaching Conference. Effects on Careers in Obstetrics Several respondents believed that there had been a decrease in the number of graduating residents entering independent practice, because the cost of medical malpractice insurance for an independent practitioner has contributed to making start-up costs prohibitive.
In addition, several respondents noted that as a result of the professional liability problem it has become more difficult for obstetricians to change jobs.
Social Media, the Doctor-Patient Relationship, and Liability
Specifically, respondents believed that the necessity of purchasing "tail" coverage for claims-made medical malpractice policies has made the cost of hiring new obstetricians prohibitive. Several respondents noted that the cost of insuring part-time faculty was not significantly less, if less at all, than the cost of insuring full-time faculty. With regard to whether the medical malpractice climate is affecting students' choice of obstetrics as a specialty, the committee received contradictory responses.
Several respondents felt that their medical students had been deterred from entering obstetrics. On the other hand, many respondents reported no change in the number of students choosing to specialize in obstetrics. Recent statistics failed to confirm a major decline in those choosing obstetrical training, although a decrease from tofrom 8.
Many respondents agreed that the great increase in the proportion of women entering obstetrics and gynecology now almost 50 percent of residents has helped avoid what otherwise would have been a major drop in the number of medical students choosing the specialty.
Effects on Access to Care Although the committee's letter did not query respondents specifically about their perception of the effect of the liability problem on access issues, a number of respondents noted the increased influx of the medically underinsured into academic medical centers.
Their perception is that this influx is a result of the professional liability crisis, which is curtailing the availability of federally subsidized obstetrical services outside these hospitals: We are being severely pressured by the number of new, medically indigent patients requiring obstetrical care. These underfunded patients provide a heavy load, which further usurps faculty time and detracts from research, and often creates increased medicolegal risks because of the lack of continuity of care.
As practitioners surrounding us have withdrawn from obstetrical practice, these individuals have few other places to go. It is the original Catch Finally, a number of respondents commented on the shrinking availability of obstetrical services in rural areas, the departure of family physicians from obstetrical practice, and the overall decrease in obstetrician-gynecologists providing obstetrical services.
Impact of Medical Professional Liability on the Physician-Patient Relationship The Importance of Trust Central to any discussion of the doctor-patient relationship since the time of Greek philosophers is the importance of mutual trust.
The contingency fee arrangement encourages patients to take legal action. It also gives lawyers a powerful reason to seek out plaintiffs and to ask juries for large settlements. The outcome of the adversarial courtroom drama, played before a lay jury, is often influenced more by emotion, legal histrionics, and the testimony of hired-gun "expert" witnesses than by the weight of scientific evidence and the opinion of unbiased authorities.
Huge awards for "pain and suffering" are common and tend to drive up costs. The most perverse aspect of the whole system is its failure to provide for compensation without proving malpractice.
Maloccurrence, which justifies compensation, does not necessarily mean that malpractice has occurred. At present, however, compensation for iatrogenic injuries depends on convincing a jury that there has been malpractice by the physician or the hospital. The system, in other words, forces all patients seeking compensation for an injury to convince a jury that some person or institution is at fault, even though frequently there is reasonable doubt about such fault.
The fact that most malpractice cases are decided in favor of the defendant suggests that legal action is very often initiated without sufficient evidence to support the claim. Nevertheless, this circumstance does not mean that the plaintiff has not suffered injury at the hands of the medical care system nor that the plaintiff is undeserving of compensation. The basic problem here is that there is no way for the plaintiff to get that compensation without taking legal action against the health care provider.
This basic distortion of logic must ultimately be corrected if we are ever to solve the malpractice problem. Social Attitudes The epidemic of malpractice litigation is due also to a general change in social attitudes. We live in an increasingly litigious society in which there is a growing tendency to assign personal responsibility for almost every misfortune and to use the legal system to gain compensation from those believed to be at fault.
Liability actions are increasing in many sectors, not just in medicine, and liability insurance costs for many private businesses and public institutions are rising rapidly. The growth of a more militant consumerism adds to the pressure for litigation, as does a growing public skepticism about the medical profession.
Physicians in general no longer have the unquestioned public trust and esteem they enjoyed a generation ago. The image of the doctor as omniscient and beneficent has been tarnished by a spate of stories in the media about incompetent, venal, and unethical physicians and by a growing suspicion of all authority.
Commercialization of Medicine The commercialization of medicine, which has become increasingly apparent during the past 10 or 15 years, contributes to this erosion of public trust.
The growing tendency of hospitals and other health care institutions to act like businesses—and of many physicians to act like businessmen—has changed the attitudes of patients.
When the Samaritan ethic was more in evidence and patients believed that their doctors were more interested in their welfare than in economic gain, liability actions were unlikely, even when things went very wrong. But when medical care becomes primarily a commercial transaction and patients are treated as customers, the climate changes. As customers, patients are more inclined to demand total satisfaction and to seek legal redress when the results of their medical care are disappointing.
Litigation, after all, is a frequent resort when relations between the parties in a commercial transaction become troubled. It ought to be only rarely used in a properly functioning doctor-patient relationship because patients who see their physicians as trusted counselors rather than as vendors of services demand only that they be competent and caring.
Patients who trust their doctors and believe they are doing their best are more philosophical about disappointing outcomes. Effects of the Malpractice Crisis on Doctor-Patient Relations These general considerations bring me to a consideration of the main topic of this discussion: There is no doubt that among the major causes of this crisis are the attitudes doctors and patients have toward each other and the way doctors and patients interact.
Equally certain is that concern about malpractice litigation has powerful effects, both good and bad, on the practice behavior of many physicians. In focusing on these aspects of the subject I do not wish to minimize the importance of the others mentioned above.
No satisfactory solution of the malpractice dilemma is likely to be achieved without attention to all of the causes I have outlined, but I have been asked to limit my comments to this part of the problem. In a symposium as wideranging as this one, the subject of doctor-patient relations obviously needs close attention.
As an internist, I am not qualified to discuss the special problems of obstetrical practice. Most of my comments will be of a general nature, and to the extent that they are valid, they apply to obstetrical care as well as to other areas of medical practice. I must also point out that, because the literature has almost no factual evidence bearing on this subject, I am reduced simply to expressing my opinions, which are based on reasonably extensive clinical experience.
Although I believe my views will be supported by most experienced physicians, they nevertheless must be acknowledged to be opinions. With those caveats, let me begin by considering how the attitudes of patients and doctors and the practice style of doctors affect the likelihood of a malpractice action. Changes in Attitudes The first thing that must be said is that a patient is much less likely to sue a physician if they know each other well, if the patient trusts the physician, and if the physician tells the patient whatever he or she would like to know, explaining as much as possible and honestly facing up to any failures in diagnosis or treatment.
When most physicians were primary care givers, personal contact between doctor and patient was maximized. The decline in the dominance of primary care practice and the increasing prevalence of specialists have reduced the patient's personal contact with the doctor.
Many specialists are virtual strangers to their patients. Specialization also means the introduction of many new technical procedures, which not only gives rise to greater expectations by patients but also increases the risks of incompetence and expands the possibility of malpractice. Specialized technology makes it possible to do more for patients, but it also tends to estrange doctors and patients.
It is hardly surprising that, when anything goes wrong, specialists are more likely to be sued than primary care physicians. It is for this reason that the malpractice premium rates for specialists, who perform technical procedures, are higher than for general physicians, who primarily offer counsel and relatively simple office procedures.
Changes in Practice Organization The rise of group practice might affect malpractice risk in different directions. On the one hand, physicians in groups are more likely to be under close, continuous peer review and less likely than those in solo practice to be impaired or incompetent. This factor would suggest that bad outcomes leading to malpractice actions might be less common. On the other hand, physicians in group practice are more likely to share responsibility for their patients and therefore to be less closely bonded to them.
For example, in large group obstetrical practices whose physicians rotate being on call, it is common for a woman to be assisted with her delivery by an obstetrician who has not provided most of her prenatal care.
This factor might suggest a greater likelihood of patient dissatisfaction.