More C-sections = fewer lawsuits

Legal Actions and Complaints in blue folder. Medical failure concept.

Defensive medicine works.

A recent study shows that obstetricians who have higher C-section rates are far less likely to be sued than those who have low C-section rates. Why?

There is a potential solution but insurers won’t pay for it.

There are two possible reasons: obstetricians who have higher C-section rates may have better outcomes and obstetricians who aggressively try to prevent bad outcomes are less likely to be sued when a bad outcome does occur.

This has important implications for those attempting to reduce the practice of defensive medicine.

According to Wikipedia:

Defensive medicine … refers to the practice of recommending a diagnostic test or treatment that is not necessarily the best option for the patient, but … to protect the physician against the patient as potential plaintiff …

There’s a lot of handwringing about defensive medicine among those who wish to reform healthcare. They aren’t so much scandalized by the possibility of patients receiving unneeded treatment (although they are concerned about it) as they are horrified by the increased cost of potentially unnecessary treatments. It is an article of faith among reformers that defensive medicine could be eliminated resulting in decreased spending and no impact on the quality of medical care. They may be wrong.

The paper is Physician spending and subsequent risk of malpractice claims: observational study published in the BMJ.

Across specialties, greater average spending by physicians was associated with reduced risk of incurring a malpractice claim. For example, among internists, the probability of experiencing an alleged malpractice incident in the following year ranged from 1.5% (95% confidence interval 1.2% to 1.7%) in the bottom spending fifth ($19 725 (£12 800; €17 400) per hospital admission) to 0.3% (0.2% to 0.5%) in the top fifth ($39 379 per hospital admission). In six of the specialties, a greater use of resources was associated with statistically significantly lower subsequent rates of alleged malpractice incidents…

The results were especially striking in obstetrics:

Increasing average risk adjusted caesarean rates for each obstetrician year was associated with decreases in the probability that an obstetrician experienced an alleged malpractice incident in the subsequent year. For example, the average adjusted caesarean rate for each obstetrician increased from 5.1% in the bottom fifth of obstetrician years to 31.6% in the top fifth, whereas the probability an obstetrician experienced an alleged malpractice incident in the subsequent year decreased from 5.7% (95% confidence interval 4.6% to 6.8%) in the bottom fifth of caesarean delivery rates to 2.7% (1.9% to 3.6%) in the top fifth. In within physician analyses, which relied on variation in risk adjusted caesarean rates within the same obstetrician over time, greater caesarean rates continued to be negatively correlated with the probability of facing an alleged malpractice incident in the subsequent year (increased risk adjusted caesarean rate from the bottom fifth to the top fifth was associated with a −1.5 percentage point (95% confidence interval to −3.6 to −0.6) change in malpractice claims in the subsequent year).

I created the following graph to illustrate the results.

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Obstetricians know this and if affects the threshold for performing a C-section. Consider that the most dreaded possible outcome for any obstetrician is the preventable loss of a baby or mother. The second most dreaded outcome is a malpractice lawsuit. Is it any surprise then that obstetricians are willing to perform C-sections when there is any doubt about the baby’s wellbeing?

Doctors blame lawyers.

Law professor Sandra Johnson writing in Regulating Physician Behavior: Taking Doctors’ “Bad Law” Claims Seriously notes:

Doctors frequently claim that the very law intended to improve the lot of their patients is instead making the doctors provide poor care. These “bad law” claims are levied against malpractice litigation that makes doctors practice “defensive medicine”; … against antitrust laws that prevent doctors from organizing themselves in ways that would produce more cost-effective and accessible care; and against regulations that impede important medical research. These “bad law” claims assert that the law’s effort to promote patient health and well-being has actually caused significant harm.

Healthcare reformers blame doctors:

Medicine’s complaints … [have come] to be characterized as the work of a self serving guild, rather than a profession motivated by altruism and armed with expertise, or at least as the work of the recalcitrant “bad apples” who continued to resist improvements that the more enlightened among them embraced. These narratives marginalized physicians’ … claims and diminished them as a source of legitimate information about the effectiveness of reform efforts.

Rather than addressing the substance of doctors’ arguments, experts and lay people have denied that there the complaints are legitimate, ascribing them to greed and self interest. Yet in the case of medical liability, as in other areas of medical “reform,” doctors are often right.

We tell obstetricians “Make sure all babies are born perfect or we will try to destroy you professionally and economically in malpractice suits!” and then piously express shock and horror that obstetricians will perform C-sections in order to guarantee perfect babies.

There is a potential solution to this problem but insurers and reformers don’t want to pay for it:

It has been shown repeatedly that doctors who have good relationships with patients are less likely to get sued by those patients regardless of outcome. But creating a relationship with a patient — being available, listening to and thinking about patient concerns, answering any and all questions and making sure patients understand the answers — takes lots of time. Insurers won’t pay for physician time; they pay for physician procedures. Moreover, insurers and reformers are constantly pressuring doctors to be more “efficient,” in other words to spend less time with each patient.

And so we end up with a system where more C-sections = fewer law suits.

Defensive medicine works, but building patient relationships also works. Insurers will pay for defensive medicine but they won’t pay for building relationships between doctors and patients.

Who’s really at fault for the increase in defensive medicine?

  • mabelcruet

    Slightly off-topic, or maybe slightly on topic. The Daily Mail has a story today about stand alone midwife birthing centres (those not attached or within a medical led unit). Figures show 1 in 4 women starting labour in the stand alone units end up being ambulanced out to medical led units that can be up to 60 miles away. Nothing in the story about morbidity or mortality rates though-I know in our region there are very strict criteria and a low threshold for transferring out, but it must be frightening for those mothers getting moved mid delivery.

  • lawyer jane

    How do you prove that a c-section was due to defensive medicine, as opposed to just being risk averse? The magnitude of the risk in childbirth is so high (dead baby) that it makes sense that in our risk-averse world, we do more c-sections. I’m not sure that defensive medicine is really the main contributor to c-section rates. Maybe the doctors who spend more/do more c-sections just have better outcomes and hence fewer malpractice claims.

    • Daleth

      Not sure what the difference is, in this context (OB CS rates), between risk aversion and defensive medicine. Doesn’t defensive medicine mean “medical practices that reduce risk because the doctor doesn’t want a patient to get hurt and sue her”?

      • lawyer jane

        Risk aversion is avoiding an actual risk, which can be justified if the risk is so severe (death of a baby). Defensive medicine, as I understand it, is taking steps just to CYA. I think that even if we outlawed tort suits against doctors, we’d still see the same risk aversion by OBs. I’d like to see a paper comparing the rise in c-sections in countries or states where there are limits on the tort system. I suspect you’d see a rise there too.

        I also think that what looks like defensive medicine and risk aversion can be a product of a sort of cognitive bias by doctors. If the test exists, then they want to do it because “more information can’t be bad.” We faced this when our son was hospitalized in a major children’s hospital — they wanted to do more tests (that required general anesthesia on a 3 year old). When we pushed back a little, their only reason for doing the test right then was “well, this is a tertiary care center, we see everything and it would be easier to just get him into that MRI right now.” There was actually no reason to to it emergently (or even at all, as it turned out).

        • lawyer jane

          I should add — one reason we ended up skipping the MRI is in fact that we developed a good relationship with the doctor and were able to talk through all the risks and benefits. Even if she ended up being wrong, we wouldn’t have sued her. OTOH I definitely would have sued if there had been a complication from the MRI under anesthesia they wanted to rush us into initially. So Dr. Amy is definitely right about that.

  • namaste863

    I like tests. Tests are good. If they come up negative, and are in retrospect unnecessary, woo hoo! One less thing to worry about. If “Interventions” are used, and turn out to be unnecessary in retrospect, well, better safe than sorry, especially when the stakes are so high. You know what needing them says about my worth as a human being? Diddly squat. Why should it? I wear contact lenses. I’m nearsighted. I don’t spend my time wringing my hands over that fact, feeling deficient somehow. How on earth does being nearsighted make me deficient? I just thank the FSM that contact lenses can give me 20/20 vision and nobody knows I’m wearing them. Woo hoo! Hooray optometrists! Hooray contact lenses! And especially, Hooray for any and all medical “Interventions” that can save my ass and my loved ones ass if the shit hits the fan!

    • Sheven

      Honestly, if I could get 20/20 vision in exchange for every child I ever have being delivered via c-section I’d happily make the trade.

    • SporkParade

      Except that tests aren’t always good. For example, amniocentesis carries a 1 in 800 risk of miscarriage. Anyone could have a child with a genetic abnormality because that’s what evolution does. However, different people will evaluate that risk differently.

    • sdsures

      YES!

  • AnnaPDE

    It’s not all that surprising that people get sued less for doing an allegedly bad job if they made sure to rule out even unlikely problems (“unnecessary” tests) and tried to get on top of potentially serious ones early. As a patient, I appreciate when the doctor is thorough. Especially when insurance pays for it, but also when I do it myself: For example, all my pregnancy checkups were A$140, which I initially paid out of pocket (the visa to get half of it covered only came through at 6 months). This price was the same regardless of what the doctor did in the 30 minutes – chatting, explaining, using her ultrasound machine, exam, whatever. So of course in addition to palpating and measuring, she’d also check what the baby was doing inside, how the placenta was doing, how the cervix was looking, and happened to take some cute photos in the process. Had there been a problem, she would have caught it early.
    Compare that with a friend’s checkups where the doctor had the ultrasound machine there but didn’t use it – because that was the “public” system and the US would have to be billed separately and justified. The appointments weren’t shorter though, so it’s not like there were any efficiency gains.

  • LaMont

    OT: Abortion now de-facto illegal in Ohio!
    http://www.cnn.com/2016/12/07/politics/ohio-abortion-bill/
    But Kasich was the good one, totes.

    • Sean Jungian

      Sigh.

    • maidmarian555

      Oh no. That’s awful. I always find it difficult to understand what the specifics would be when they say it would be acceptable in ‘cases of rape’. How many rape cases could possibly be resolved within 6 or even 20 weeks of the offence occurring? How would a woman prove it legally in a way within that ridiculous time-frame that would pass the legislative hoops she’d have to jump through? This is just *terrible*.

      • LaMont

        I don’t think this one has that exception, anyway. But it’s an exception that is meaningless, as you point out. Women are willing to DIE to acquire abortions, so it’s easy enough to claim that all “I got raped, let me abort” arguments are lies. I wouldn’t blame a woman for an instant for that lie, by the way, not that many would necessarily use it. Exceptions make no sense if you consider abortion *murder*, except maybe life-of-the-mother exceptions, which also don’t work. Either it’s a legal medical procedure, or it’s murder. So many anti-choicers want it sorta both ways.

        • maidmarian555

          Ah yes I see. It was the quote that said:

          “Earlier this year, Kasich told CNN that he was “pro-life with the exceptions of rape, incest and the life of the mother.”

          That was the bit that bothered me. They *say* that they support abortions when horrific circumstances surround the conception of the foetus but the reality is (so far as I can see) if you put roadblocks in the way that prevent abused women accessing abortion services, then that’s just smoke and mirrors to make those putting the roadblocks in look a bit less shitty. They use that rhetoric to prevent the very women they pretend to be defending from accessing services that should be freely available. It just makes them look slightly less like the monsters they actually are in the press (which I guess is the thing they actually care about).

          Nobody can prove that they’ve been assaulted (legally) probably within a year or so (assuming you can get the case through court fast as many cases would take much longer than that). So how could anybody legally access a termination within a few weeks of conception? It’s utter bullshit.

          • LaMont

            Part of me wants the Satanists to kick butt in Texas and get “religious exceptions” to this law, so anyone can claim a religious belief *in* abortion, but part of me thinks religion to stay the fuck out of this. (If anyone hasn’t heard, the Satanists are mounting a challenge to the Fetus Funerals law in Texas using their religious belief in bodily autonomy. Go figure, the Satanists are doing god’s work in Texas!)

      • Erin

        I think it comes from a place of privilege primarily from those without uteruses and a blinkered view of rape.

        There seems to be an assumption from a lot of people that your average “real” rape victim in position of a uterus drags their battered, bleeding, broken,bruised body to the nearest A&E or police station to be violated all over again and then given preventive measures in the form of a pill.

        In that scenario, no one gets pregnant after being raped and thus it doesn’t matter what the law says.

        Of course the reality is very different.

        • Sean Jungian

          Don’t forget the inherent racism as well as misogyny. “Real” rape is only done by lurking men of color (strangers) against white women. Anything else is just “boys will be boys” or “she wanted it”.

          • sdsures

            Gee, that’s funny. I’m white, and the guy who sexually assaulted me was white.

            Sigh.

      • Azuran

        that’s easy. don’t forget, If it’s a ‘legitimate’ rape, the woman won’t get pregnant.

        • Sean Jungian

          Right! The woman’s body”has ways of shutting that all down”.

          I’ve never heard of anything like this outside of “Watership Down” where the Efrafran does could re-absorb their kits rather than give birth. I guess that’s where he learned human anatomy.

        • Empress of the Iguana People

          fortunately, not something Kasich has said.

          • LaMont

            Well, it doesn’t matter because this bill has no exceptions for rape. And the rape exception makes no sense. If you think it’s murder, it’s murder regardless of how bad the murderer’s life has been. If you think it’s a medical procedure, then the circumstances are irrelevant. Pregnancy is a health condition, it can be treated according to a woman’s discretion, full stop. Anyone who believes in banning abortion but including a rape exception (as Kasich is on record saying he does) is severely confused. Especially because they NEVER explain what a woman would need to do to invoke the exception. Presumably, they’d throw her in a lake and if she sinks, she gets the abortion? Actually getting a conviction would take years if it ever happens, and rape allegations are *always* slandered as false. Anyone who brings up a rape exception has some idiotic magical thinking/just-universe nonsense in their heads to the point where they might as well just quote Todd Akin.

          • Daleth

            Here’s an interesting article on how the rape exception to Medicaid funding for abortions works:

            Women “often had to go through a grueling process to be reimbursed….. many states require that women submit police reports. In Iowa, for example, women must submit a police report of a rape within 45 days of it occurring and give the report to their abortion provider…. Given that most rapes…are never reported to police, that rules out funding for a majority of women right off the bat.”

            https://www.washingtonpost.com/news/wonk/wp/2012/08/21/how-do-rape-exceptions-work/

          • sdsures

            Yet.

          • rh1985

            I knew someone years ago who said he believed very strongly that full human life began at conception. Yet he also supported a rape exception to abortion bans. His justification was that “the rapist will be morally responsible for the death.” I don’t know if he truly believed that or just couldn’t bring himself to want to ban it in rape cases.

          • sdsures

            Oy.

        • sdsures

          ARGH!!!!

    • Empress of the Iguana People

      wonderful. note the sardonic tone in my head.
      Now, I *knew* and *wanted* to be pregnant and both my 6 week exams (TVUS’s!) did show itty bitty flutters in the middle of the miniscule amoebas that eventually became my children. But their twins had only just gotten absorbed or whatever happens to blastocysts/embryos when they disappear after making a little sac. And they really did look like amoebas to my untutored eye. We still have *tails* at that stage. Ugh.

    • niteseer

      It infuriates me when lawmakers deny women their health choices. And, it IS a health choice. The risks of death from pregnancy related complications when a pregnancy is carried to term is 14 times higher than the risk from a very early abortion. To force a woman to carry a pregnancy forces her to risk her life, regardless of her financial situation, her medical status, her children and partner who need her. I believe that pro-choice can be pro-life too….pro maternal life. The woman is just considered the inanimate object to gestate the fetus.

      I think that, in return, it should be made law that if one of your children, or your spouse, needs a kidney or part of your liver, you should be forced to climb on the operating table and fork it over. Men only, though, as the woman might be gestating a baby. By the time a few lawmakers had to be gutted for a kidney to give to an estranged adult child, they might feel a bit differently.

      • guest231

        We recently had a couple of young female patients who lost their kidneys because of pregnancy complications. Guess who’s donating their kidney to them? It’s almost always the mother, not the father or partner.

    • Gatita

      What’s going to end up happening is an underground railroad transporting women out of the state for abortions or some kind of underground market for Plan B and other abortifacents. Of course not all women will have access today and you’ll still get that same tragedies you have in the past.

      • LeighW

        Don’t be silly…

        They’ll try to make that illegal too

        • LaMont

          Oh I fully believe they would mandate pregnancy tests before flying or drinking. I personally know two women who’ve lost children due to prematurity and obviously tons of women who’ve had miscarriages – something tells me if you’re not white or rich you could end up in prison for that.

        • Gatita

          But the difference is that this is a state within the United States versus an independent country. Is it possible for a state to forbid women to leave to move to another state within the US? I mean obviously anything could happen at this point but I think it would be a very difficult thing to do. Plus how do you stop the mail from coming in with packages of Plan B?

        • sdsures

          There’s a movie on Netflix about a young woman who tries to get an abortion under his regime. :'(

        • sdsures

          “Ceaușescu was likewise stripped of his honorary GCB (Knight Grand Cross of the Most Honourable Order of the Bath) status by Queen Elizabeth II of the United Kingdom on the day before his execution. Queen Elizabeth II also returned the Romanian order Ceaușescu had bestowed upon her.” (wiki)

          Good.

    • MI Dawn

      Holy crud. Of course, the frackin’ politicians can get abortions for their wives and daughters by going to another state. They don’t care about their constituants. “The only Righteous Abortion is MY (wife’s, daughter’s, own) abortion”

      • MaineJen

        Exactly. The rich have *always* been able to get abortions when they need them. A law like this will disproportionately target the poor. SMDH

    • Daleth

      Kasich was never the good one. The only Republican I would support electoral college members ditching Trump for is Romney, because in addition to being sane, experienced and not a religious nut, he has legitimacy in that SIXTY-ONE MILLION people voted for him in 2012. Whereas Kasich, in addition to being a proto-fascist religious nut, couldn’t even win a goddamned primary outside of his home state.

      This type of law is unquestionably unconstitutional, so the reason for passing it, apart from mere posturing, is to get it before the Supreme Court at a time when, they hope, there will be another extremist justice or two, to overturn Roe v. Wade.

      • sdsures

        Romney? Sane?

        • Gatita

          I have friends who live in Massachusetts and they say Romney was a reasonably good governor. The problem is that taking a national office requires him to take on the nutbag persona. It’s a horrible situation.

        • Kerlyssa

          he’s a two face wank weasel, but he’s not insane.

          • sdsures

            What are the psychological characteristics of a “wank weasel”?

    • New Mom

      This is horrifying. My husband and I want to have a second kid, but I don’t feel safe getting pregnant again. I don’t know that whatever healthcare I need will be available and I could die as a result. I live in Illinois where laws like this aren’t as likely to be passed, but if you told me a year ago that Donald Trump would be the president, I would have said that wasn’t possible. I feel like I need to get an IUD as soon as possible while I’m still allowed to make decisions about my own body.

      • sdsures

        *hug if appropriate*

    • sdsures

      No words. I wish it was fake news.

  • CSN0116

    The biggest CME turnout my university ever had was a session entitled, “How Not to Get Your Ass Sued” and was all about how to “be nice” and “forge relationships” (even if superficial) to avoid litigation. LOL

  • Sean Jungian

    I think this emphasis on procedures and neglecting to enable health care professionals to develop relationships with their patients is also one of the prime factors in moving people into quack “alternative” medicine. Naturopaths (and NCB advocates like CPMs) can spend as much time holding your hand as they want when they are paid out-of-pocket.

    It’s kind of heartbreaking in a way. Honestly I think insurance companies bear the brunt of the “blame” in this.

    I hear a lot of people bemoaning that they’re “just a number” to their doctor and invariably they blame the doctor’s “greediness”. I think people are willing to pay for a doctor’s time but unfortunately their health insurance provider isn’t. There’s a disconnect there.

    • Cody

      “I think this emphasis on procedures and neglecting to enable health care professionals to develop relationships with their patients is also one of the prime factors in moving people into quack “alternative” medicine.”

      Very true.

    • moto_librarian

      I am at a point where I’m feeling very frustrated with doctor turnover. In the span of two years, I have lost three primary care providers in succession. I had just gotten established with a new NP two months ago, and now she’s leaving my healthcare system too. I’ve also fallen through the cracks regarding cardiology. I had seen the same doctor for about four years, but I got a letter from her stating that she was going to get appointments scheduled with other doctors for all of her patients. Well, I realized that I was due for my December checkup, and the appointment was simply cancelled with no replacement named. If I had a PCP, I would simply have that person start managing my cholesterol, but I don’t know who the replacement will be for her yet. I’m not blaming the providers for choosing to go elsewhere, but this is really making it difficult for me to get the care that I need. I won’t even talk about how much worse it is to get established with someone for mental healthcare right now.