The legal constraints on VBAC

Lay people often imagine that doctors are entirely independent. They can do whatever they want in the way of medical care, whenever they want in whatever way they want. Nothing could be further from the truth. Doctors are constrained by practice guidelines, insurance company policies and legal sanctions. No where is that more apparent than in the case of vaginal birth after Cesarean, known as VBAC.

VBAC activists like to portray obstetricians as agents of evil who arbitrarily deprived women of the option for VBAC because it was “easier” or “better” for them. The reality is that obstetricians are just as unhappy as patients over the tremendously diminished access to VBAC and they have been working to figure out how to provide easy access to VBAC and comply with practice guidelines, hospital policies and legal penalties. Hence the 2010 NIH conference on VBAC and the recent publication of an entire issue of Clinics in Perinatology devoted to recapping and expanding upon the issues raised at the conference.

The chapter VBAC: A Medicolegal Perspective by Bonanno et al. is one of the best and most concise explanations of the problem that I have read:

What are the fundamental reasons why many hospitals and physicians are no longer performing VBACs? The answer is undoubtedly risk of adverse outcomes and subsequent litigation…

What kinds of adverse outcomes?

As James R. Scott, MD, aptly put in his editorial for the recent conference publication, “VBAC is essentially a uterine rupture issue.” The greatest morbidity from TOLAC for mothers and infants clearly arises from uterine rupture. According to the recent conference statement, the risk of uterine rupture for women who undergo a trial of labor at term is 778 per 100,000 (0.778%), compared with 22 per 100,000 (0.00022%) for women who undergo a repeat cesarean at term…

For patients who have a uterine rupture, what is the likelihood of neonatal death or neurologic injury? Approximately 6% of all uterine ruptures will result in perinatal death…

Okay, but obstetrics is filled with decisions that may lead to the death or neurologic injury of babies. What is different about VBAC?

the primary reason for litigation in obstetrics is the neurologically compromised child, which seems to hold true for VBAC cases. A major difference from the non–VBAC-related cases of neurologically impaired infants is that the proximate cause for the adverse neurologic outcome in most VBAC cases is generally uterine rupture.

In other words, in most cases of neonatal death or injury, there are a variety of possible causes, some that could have been avoided by the obstetrician, others that are out of the obstetricians’ control. In the case of VBAC, however, the cause is always the decision to attempt a VBAC instead of performing an elective repeat C-section. There is no possible legal defense for an obstetrician or hospital. The malpractice insurer simply has to hand over the money, sums that may run into the millions of dollars.

What is the bottom line for providers of TOLAC [trial of labor after Cesarean]? They could potentially be involved in a lawsuit in which a large settlement is paid, even if the standard of care was met.

The simplest choice for obstetricians, hospitals and malpractice insurance providers would have been to ban VBAC outright. No attempted VBACs mean no preventable uterines ruptures means no lawsuits that are impossible to defend. But obstetricians did not want to stop offering VBAC, so they hedged them around with practice guidelines meant to ensure safety and reduce the potential for lawsuits even if a bad outcome occurred. The compromise position was to require that obstetricians and anesthesiologists be “immediately” available when any VBAC patient was in labor. The reasoning is based on the fact that the standard requirement that obstetricians and anesthesiologists be “readily available” for emergency C-section, subsequently defined as within 30 minutes, is not fast enough to prevent neonatal death and disability from uterine rupture.

Why the difference in standards? Because the decision to attempt VBAC is 100% elective and, therefore, uterine rupture during VBAC is a 100% preventable complication. Yes, massive abruption, cord prolapse and severe fetal distress can be equally devastating, but none are preventable, and therefore, the decision to assume those risks is not elective at all.

Okay, but since the decision belongs to the patient, doesn’t and,the reside with the patient. Evidently not.

…In the setting of adequate informed consent, in which the standard of care was met for the management of a patient undergoing TOLAC, and for which all events were sufficiently documented in the medical record, will providers still be subject to successful lawsuits? Unfortunately, the answer is yes.

Where does that leave us? The authors draw the sad, but inescapable conclusion:

The ultimate solution to the VBAC dilemma will clearly not be found within the current system. Medical courts, tighter regulation of medical experts, dispute resolu- tion, and no-fault regulation have all been described as potential ways to make the system more efficient, more equitable, and ultimately more supportive of families who need financial support regardless of whether the injury was a result of medical negligence…

In other words, the solution will not be found by blaming, pressuring or demonizing obstetricians. Obstetricians didn’t cause the problem; doctors can’t fix it.