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Obstetrical malpractice claims are among the most serious and result in high payouts. There are unique aspects to obstetrics that create risk management challenges.
• Managing expectations is key to reducing liability risk in obstetrics.
• Identifying high-risk obstetric patients early in the process is important.
• Vaginal deliveries, not cesarean sections, account for more than half of claims.
Obstetrical claims are among the most common malpractice cases and can result in unusually large payouts because of their heartbreaking nature. The unique features of obstetrical care mean risk managers must guide clinicians to be highly attuned to the risks of individual patients while adhering to evidence-based practices — even when patients may have other wishes.
The unusual and potentially risky features of obstetrics were highlighted in an analysis of closed claims by Coverys, a malpractice insurer based in Boston. Obstetric-related events are the fifth-largest category of medical professional liability claims for this insurer, and they also represent the fourth-highest category of indemnity payments. Eighty percent involve injuries such as neonatal brachial plexus injury or neonatal neurological/brain damage fertility that are classified as “significant permanent,” the highest clinical severity, or “major permanent,” or death.
Coverys analysts say in the report that the financial costs can be “astronomical.” The high costs stem from the fact that infants born with permanent injuries may require constant care. The difficulty of caring for an injured child may prompt some families to sue even when they don’t perceive that any particular individual or facility is to blame for the injury, the report says. (The report is available online at: https://bit.ly/2ClNcND.)
The severity of OB claims set them apart from other risk management issues and justify extra attention, says Marlene Icenhower, JD, CPHRM, senior risk consultant with Coverys. There also are unique complicating factors, she says, such as the emotional component that is more exaggerated with cases relating to children.
With families understandably sensitive about the outcome of a vulnerable child, some may sue even when they don’t think any particular physician or other clinician did anything wrong, she notes.
Clinicians also are challenged by the fact that obstetrics always involves two patients, the mother and child. When their health interests conflict, clinicians can face dilemmas that can complicate their judgment and may lead to dissatisfaction no matter what choice is made, she says.
“Another thing that makes OB different from other specialties is that patients come in with expectations about how their experience should happen in the hospital. You don’t have that when you come in for heart surgery, a set of expectations that you got from the internet or from other people,” Icenhower says.
“Risk mitigation is all about open communication and setting expectations early on with the pregnancy, continuous training, and good documentation.”
The data analysis also revealed that many of the patient safety and risk mitigation issues occur early in the pregnancy, not just in labor and delivery, notes Maryann Small, MBA, director of data governance and business analytics with Coverys.
“In the past, we’ve spent a lot of time talking about managing labor and delivery, thinking that’s where all the risk is. But with more and more patients having comorbidities like obesity and hypertension, physicians can be reluctant to even label their patients high-risk and address those challenges early on,” Small says.
Coverys recommends these strategies for improving obstetrics care and reducing liability risks:
• Simulate regularly. Run simulations when patient volume is low.
• Examine the dynamics of team relationships, communication impasses, turf wars, and politics. “Don’t wait until giving a deposition or court testimony to get honest about difficult relationships, unwritten chain-of-command struggles, internal politics, or unnecessary pecking orders among OBs, family medicine, CNMs [certified nurse midwives], and nursing,” the report says.
• Adapt your patient assessment process to address patients’ cultural expectations as well as their biases and hopes for how the delivery process will unfold.
• Recognize and document high-risk pregnancies. “It’s important to document why the patient is considered to be high-risk and how you are monitoring and treating the risk factor(s) throughout the pregnancy,” the report recommends.
• Emphasize training. This should be the second-highest priority, only behind actually caring for patients, the report says. The department budget should reflect this.
• Develop a “bias toward decisiveness.” Act when appropriate rather than delaying. But at the same time, clinicians must be open to reconsideration as situations evolve, the report says.
Small notes that the data show 52% of obstetrics claims involve vaginal deliveries — more than many people might expect.
“I think people expect that most of these are c-sections gone bad, but really, many of them are related to the challenges of staying watchful during a long, difficult laboring process that ends with a vaginal delivery,” Small says.
Much of the risk management effort must be directed to the early stages of pregnancy, Icenhower notes. That includes identifying high-risk patients and developing a plan for referring them at the appropriate time to high-risk maternal fetal medicine specialists, she says.
“Setting expectations early on is very important because patients go into the delivery room with expectations that they’re going to have a natural childbirth with no medical intervention, and when things go bad, nobody has prepared them for it,” Icenhower says. “Everyone wants childbirth to be a positive experience, and people don’t want to talk about what can go wrong. Setting expectations early on is huge in mitigating some of the risks.”
Clinicians also can get out of practice with responding to serious but uncommon situations like shoulder dystocia, Icenhower notes. This is a particular risk in rural communities or other settings with a low volume of deliveries, she says.
“For smaller hospitals especially, it is important to have a system of drilling and simulations to maintain competency,” she explains. “Sometimes, you have to look outside your own facility to find ways to stay current and give people the experience that makes them confident enough to handle that challenge when it arises.”
• Marlene Icenhower, JD, CPHRM, Senior Risk Consultant, Coverys, Boston. Phone: (800) 225-6168.
• Maryann Small, Director of Data Governance and Business Analytics, Coverys, Boston. Phone: (800) 225-6168.
Financial Disclosure: Author Greg Freeman, Editor Jill Drachenberg, Editor Jesse Saffron, Editorial Group Manager Terrey L. Hatcher, and Nurse Planner Maureen Archambault report no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study. Consulting Editor Arnold Mackles, MD, MBA, LHRM, discloses that he is an author and advisory board member for The Sullivan Group and that he is owner, stockholder, presenter, author, and consultant for Innovative Healthcare Compliance Group.