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?

[pullquote align=”right” cite=”” link=”” color=”” class=”” size=””]There is a potential solution but insurers won’t pay for it.[/pullquote]

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.


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?