Better policies help you prevent being someone’s deep pocket for OB claims

Obstetric claims continue to be among the most catastrophic and costly of malpractice cases, so providers must protect themselves from becoming the deep pocket by enforcing policies that promote patient safety and are consistent with the standard of care, says an attorney and insurance company leader.

The first priority should be protecting patients, but if someone eventually is sued, you should do what you can to avoid being the most attractive target, says Susan Chmieleski, APRN, JD, CPHRM, director of health care risk management with the Chubb Group of Insurance Companies in Simsbury, CT. She spoke on the topic at a recent meeting of the American Society for Healthcare Risk Management (ASHRM) in Nashville, TN.

Plaintiffs’ attorneys are getting smarter about how to get the most payoff from an OB liability case, Chmieleski says.

"There is a change in allegations. We’re seeing some really good tort reforms throughout the country, but the plaintiff’s bar is getting very smart," she says. "We’re seeing different allegations, not just negligent care. They’re alleging things like intentional misconduct as a way to get at punitive damages."

The median award for childbirth-related malpractice cases is more than $2 million, four times the median award for all types of malpractice lawsuits, Chmieleski says. The median settlement is $750,000 for childbirth cases, compared to about $400,000, overall.

Enforce your own policies

Hospitals become the deep pocket in such cases through two main theories, she says. The first is the corporate liability doctrine, which is all about finding ways to make the organization responsible for the action of individual physicians. A common method is to examine credentialing procedures and find doctors who don’t have the credentials or expertise you thought they did.

"Another avenue is failure to have the proper policies and procedures, but probably a more common way is to show that the policies and procedures you put in place weren’t enforced," she says. "That’s an area where we are seeing big problems in these cases."

The other main theory for getting in the hospital’s pocket through respondeat superior, which means the hospital is responsible for the actions of its employees or agents. Chmieleski says these are the most common areas leading to OB liability claims against hospitals:

  • fetal monitoring interpretation;
  • timing of cesareans;
  • shoulder dystocia;
  • Emergency Medical Treatment and Labor Act;
  • chain of command;
  • informed consent;
  • telephone advice;
  • infant security;
  • family practitioners and midwives.

"These are all things that you need to have policies in your institution to handle," she says.

Failure to respond to fetal distress is a common claim, which can include issues such as improper monitoring, not recognizing fetal distress, the physician not being present in labor and delivery, lack of adequate documentation of communication between the nurse and physician, and failure to perform a timely cesarean.

Chmieleski tells of a case in which a woman was examined by an obstetrician, who determined her labor was progressing well and then retired to the doctors’ lounge. The hospital was equipped with a remote monitoring system that allowed the doctor to view the patient’s strips in the lounge; but on that day, the system was not working. The nurse thought the doctor was aware of the patient’s condition and did not report a sudden downturn in her condition. By the time the physician realized the change in condition and delivered the baby, it was severely injured. The hospital settled for $2 million, she says.

"One of the take-home messages here is, Don’t depend on your technology,’" Chmieleski says. "The nurse had an independent duty to call it to the doctor’s attention even if she thought he was sitting there looking at it in the lounge."

The ability to properly read OB monitor tracings is important, and Chmieleski says most hospitals are good about requiring nurses to demonstrate their proficiency through testing at least once a year. But physicians aren’t tested nearly as much, she says.

"When I ask about that, I often get the answer, Gee, I don’t know. That’s a medical staff issue,’" she says. "You need to know."

The hospital also should have guidelines for who needs fetal monitoring and who doesn’t, she says.

Some of the most common fetal monitoring errors involve the terminology used by different members of the OB team, says Larry Veltman, MD, chairman of the department of obstetrics and gynecology at Providence St. Vincent Medical Center in Portland, OR, and medical director of the healthcare professional liability division for the Farmers Insurance Group of Companies. He also spoke on the issue at the ASHRM meeting.

When nurses and physicians don’t use the same terminology to describe readings, time can elapse before they realize the patient is in trouble, Veltman says. He says other common fetal monitoring errors are not recognizing a nonreassuring tracing in a timely manner, or a delayed response to such tracings. Failing to record or communicate a nonreassuring tracing to a clinician also is a common problem, along with equipment failures and having too few nurses on the unit to provide adequate monitoring.

"Placing inexperienced nurses in a position in which they are expected to monitor a high-risk situation is another common error," he says.

Chain of command can be problem

In the last year, 80% of the OB cases Chmieleski has seen involved allegations that the hospital either did not have a proper chain of command or did not follow the prescribed chain of command. Plaintiffs’ attorneys tend not to have a clear idea about how the chain of command works in a medical setting, she says.

"It’s not about nurses overruling a doctor’s orders, but they try to make it about that," she says. "Make sure your defense counsel has a clear understanding when you’re defending these cases, what nursing chain of command really is. It’s about nurses having a duty to institute some chain of command when they are convinced that the medical plan of care will result in patient injury."

Disagreements about fetal monitoring strips rarely meet those criteria, Chmieleski says. There is a big difference in these two scenarios, she says: In the first, a nurse calls the doctor at home and says there is a nonreassuring tracing, so the doctor should come in, but he or she refuses. In the second, the doctor and nurse are both looking at the tracing, and the nurse says it is cause for concern, but the doctor says it is not.

"The first is a good case for instituting the chain of command, but the second is not," she says. "We all know that a fair number of nonreassuring tracings end up with a good outcome. It’s a nondiagnostic test, and sometimes it is cause for more investigation; but the tracing alone is not always enough and the doctor can draw on more information."

Chmieleski also points out that OB nurses may need a special outlet for reporting their concerns about patient care. The standard chain of command in which the nurse goes to the nursing supervisor first and then up the ladder may not work, she says.

"When you’ve got a baby in distress and you have to go the nursing supervisor, you don’t have the time for those steps," she says. "And nursing supervisors tend to be clueless about OB because it such a specialized field of nursing. You just can’t convince them of what you need to in the short period of time you have. In labor and delivery, you have to have very short, very vertical chain of command."

Chmieleski advises empowering nurses to directly call the chief of the department when there is a dispute with the OB. The chief must understand they should respond immediately when a nurse calls with such a concern, she says, and that authority must be delegated whenever the chief is unavailable.

Aim for high-reliability organization’

Veltman says trying to make your OB department a "high-reliability organization" is one way to improve patient care and reduce liability risk. This is a concept that risk managers have been adopting more in recent years, in which you employ systematic improvements to reduce the likelihood of errors and adverse events. For a perinatal unit, Veltman says research has shown that you should strive for these benchmarks:

  • The unit is always oriented to confirming fetal and maternal well-being.
  • Variation is reduced by standardizing policies and procedures.
  • Teamwork is the hallmark of the unit.
  • Minimize hierarchy so that anyone can raise issues of patient safety.
  • There are superior intraprofessional communications among all team members.
  • Shift work does not breed procrastination.
  • Physicians always come when asked.
  • The team practices for the unexpected such as crash cesareans and shoulder dystocia.
  • There is multidisciplinary review of adverse outcomes and near misses.

30 minutes no longer the standard

The hospital’s policies must ensure that OBs are available for emergency surgery, and Chmieleski warns that the old rule of thumb about being available within 30 minutes no longer applies. The standard of care is that the physician must be "immediately available," she says.

"Where we get into this argument all the time is over what is immediately available," Chmieleski says. "It’s not 30 minutes, it’s not doctors in their offices, it’s not doctors scrubbed in on a case. I tend to be very conservative on this, and I think it’s entirely reasonable to interpret immediately available’ as your doctor on your labor and delivery unit, with no other primary responsibility other than making sure this patient doesn’t get into trouble."

Veltman agrees saying juries typically put much more emphasis on issues they can understand easily, like whether the doctor came to the hospital promptly, instead of the medical issues that attorneys and experts laboriously explain.

"Who defines immediately’? The jury does," Veltman says. "And they may presume that if the physician had been present, he or she would have intervened to prevent the adverse outcome."

Patients seeking vaginal birth after C-section (VBAC) or trial of labor after C-section (TOLAC) pose special liability risks, say Chmieleski and Veltman. If your hospital does VBACs, Veltman says you should use these strategies to protect patients and reduce your risk:

  • Consider a 1:1 nursing ratio for VBAC patients.
  • Consider an intrauterine monitor.
  • Make sure the entire team is immediately available, not just the physician.
  • Confirm that there is an operating room available.
  • Ensure that your physicians and staff have drilled on crash cesareans.

For smaller hospitals, Veltman says risk managers must consider prohibiting VBACs altogether if the resources are not available to use those safeguards. In that case, you would have to transfer patients who want VBAC to another facility and allow only scheduled repeat cesareans.

Another option for smaller hospitals is to bring in the entire team, including anesthesia and surgery staff, when a VBAC patient is admitted and have them stay until the delivery. Twenty-four-hour anesthesia and surgery personnel make VBAC a safer option, but that may be cost-prohibitive for smaller facilities.

All patients seeking VBAC or TOLAC should sign consent forms indicating the risk of those procedures, Chmieleski says. Though this has long been the physician’s responsibility, courts are indicating more and more that it is the hospital’s responsibility to make sure consent was obtained, she says.

Veltman suggests using wording similar to this in a VBAC or TOLAC consent: "The patient understands that she has a least a 0.5% to 1% chance of uterine rupture with a trial of labor which may necessitate a hysterectomy and, associated with a rupture, there is a 25% chance of permanent brain damage or death to the baby. She understands she may have a cesarean if she desires."

Chmieleski says that last line is important, and the delivery team must be ready to respect the patient’s wishes if she changes her mind.

"Include an affirmative statement that the patient has a right to withdraw consent at any time," she says. "And when the patient says stop, that she wants a C-section, listen to her."