4 ways to lower your risk of an obstetric malpractice suit

Dr. Stiller is Chief, Section of Maternal-Fetal Medicine, Vice Chair, Department of Obstetrics and Gynecology at Bridgeport Hospital, and Clinical Professor of Obstetrics and Gynecology at Yale School of Medicine, Yale New Haven Health System, Connecticut.

Obstetrician-gynecologists are frequently exposed to malpractice claims. Approximately 77% of the ob/gyns surveyed by the American College of Obstetricians and Gynecologists (ACOG) in 2012 said they had been named in a malpractice suit during their careers and the average number of claims per respondent was 2.64.1 Of those claims, 42% were a result of care rendered during residency.

The most common reasons for obstetrical claims were birth of a neurologically impaired infant (28.8%), stillbirth/neonatal death (14.4%), and delay in diagnosis/failure to diagnose (11.1%). In 2014, the Risk Management Committee of the Society for Maternal-Fetal Medicine (SMFM) reported similar data for maternal-fetal medicine (MFM) subspecialists: 67% of those who responded to a survey had experienced a legal claim and 54% had faced 3 or more claims.2

As a practicing MFM specialist with more than 30 years of expert witness experience in cases of suspected obstetrical negligence, I have observed certain patterns that increase risk. Here I will review selected case patterns, offer tips for recognizing certain high-risk situations, and offer suggestions for ways to lower risk and improve outcomes.

1. Learn to trust the laws of physics: You can’t be in two places at the same time

A physician with a patient in early labor is also performing an abdominal hysterectomy and providing emergency department (ED) coverage for his group.

Earlier in the day, a fetal heart rate (FHR) tracing on the laboring patient had demonstrated moderate variability and accelerations. While in the operating room, the physician is called by the labor and delivery (L&D) nursing staff and told that the FHR tracing is beginning to show minimal variability and a lack of accelerations. He advises them that he is almost done with his surgical case, he will come right up to evaluate the situation, and it is not necessary to call one of his partners.

Approximately 1 hour later, the physician comes to L&D, reviews the monitor strip, and feels that the labor can continue. He informs the nursing staff that they should keep watching the strip and notify him if it deteriorates.

The ob/gyn next goes to the ED to evaluate a woman with an incomplete abortion and determines that she needs a dilation and curettage (D&C). During the next 90 minutes, the FHR pattern in L&D worsens, and the L&D team contacts the OR to tell the doctor to come to L&D as soon as he is done. This message is not conveyed or heard by the physician until he receives a STAT page while in the recovery room.

On arrival in L&D, he sees notes repetitive decelerations and absent variability on the FHR, and makes plans for an emergency cesarean delivery because the patient is only 7 cm dilated. He delivers an infant with a cord pH of 6.95.

The pressure to be more efficient and to overextend our clinical responsibilities creates an environment in which an ob/gyn may not be able to provide each patient with the attention she needs. It’s often possible for a physician to multitask throughout the day, but finding yourself in situations in which you need to be two places at once increases the risk of adverse outcomes.

To avoid these cases, it’s critical to have clear back-up plans if you need to leave L&D or are committed to caring for another patient. Also, giving nurses the authority to call partners or other physicians in the event of an emergency and stop oxytocin infusions when a FHR strip becomes nonreassuring helps to minimize the frequency of these situations.

2. Don’t fall asleep at the wheel: The risks of providing resident supervision

A patient of shorter stature is admitted for induction of labor at 41 weeks. The facility is a teaching hospital in which both private and full-time staff physicians supervise ob/gyn residents for 24-hour coverage. At the patient’s first prenatal visit, the clinical pelvimetry fields in the prenatal records were not completed, but the woman’s pelvis was documented as adequate at the time of induction. Progress notes documenting her labor course are written by the covering residents but the supervising attending does not document the patient’s history, physical examination, or plan on admission, nor make progress notes.

As midnight approaches, the attending physician goes to sleep in the call room with instructions to call if problems develop. The patient slowly progresses to full dilation and begins pushing. After a series of progressively worsening variable decelerations, a prolonged deceleration occurs.

A vacuum delivery is attempted by the second-year resident as the attending is paged STAT from the on-call room. The attending examines the patient and calls for an emergency cesarean delivery in light of significant molding of the head and uncertain station. The infant is born depressed and shows signs of hypoxic-ischemic encephalopathy.

Leaving portions of the prenatal record incomplete creates the impression of poor care. At deposition in this case, questions concerning the adequacy of the patient’s pelvic examination and appropriateness of her induction, given her short stature, were raised. The use of “hard stop” portions of the L&D record (notations on patient care that must be documented prior to beginning the administration of oxytocin, including pelvis adequacy, fetal heart rate (FHR)tracing, cervical exam, and estimated fetal weight) demonstrate consideration and knowledge of the important variables that affect the safe use of oxytocin.

Resident supervision requires a fine balance between allowing residents to develop independent management plans and make decisions and protecting patients from harm caused by inexperience and insufficient training. The equation is complicated by the far greater amount of supervision expected of today’s junior and senior residents than was the case when many of today’s attendings received training.

Lack of direct involvement by the attending in the plan of care and documentation creates the appearance of inadequate supervision in the case of an adverse event. Having the attending independently document the initial plan of care in L&D and make an additional note at every attending hand-off, enhances knowledge of the patient’s history and fosters ownership of the patient by both the covering attendings and the residents during switches and hand-offs. Ensuring continued involvement of the attending (rather than just calling for the attending at delivery) can reduce medical-legal risks, should an FHR tracing become nonreassuring.

3. The clock is ticking: Train for the worst and hope for the best

Following a cesarean delivery for malpresentation in which the lower segment uterine incision had to be extended to effect delivery, a patient is noted to be hypotensive and anemic. An examination performed by her physician shows the uterus to be firm. No excessive vaginal bleeding is noted. Despite intravenous fluid administration and rapid blood transfusion, the patient’s clinical status appears unchanged, with continued hypotension, tachycardia, and oliguria. Approximately 3 hours after surgery, the patient experiences a cardiac arrest. After resuscitation, she shows signs of severe neurological injury. Eight hours post-surgery, she is removed from the respirator and expires. At the time of autopsy, a large intraperitoneal hemorrhage is found in her abdomen.

At trial, medical experts debate whether this was a postsurgical bleed from the patient’s cesarean delivery or a coagulopathy secondary to an amniotic fluid embolus (AFE). Certain aspects of the case, however, were indisputable.

Simulation training can help prepare a L&D team to respond to obstetrical emergencies that occur with little warning. By practicing: 1) who (eg, anesthesia, critical care, perinatology, cardiology, hematology, pulmonology, interventional radiology, etc.) should be called in a given emergency (eg, suspected AFE, suspected hemorrhage); 2) when the nursing team should activate the chain of command or Rapid Evaluation Team; 3) where the patient should be managed (eg, L&D, intensive care unit, or main OR); and 4) which management plan to initiate (eg, massive blood transfusion request protocol), teams can respond better when such emergencies occur.

Low-frequency, high-acuity obstetric emergencies are challenging for any L&D unit, and simulation training helps prepare the entire team to respond when timing is critical. Also, written documentation of plans, the risks and benefits of the actions considered, and steps taken to get help during these emergencies shows if care of and involvement with the patient was appropriate, even when the outcome was unfavorable.

4. Empathy matters: Learn to say ‘I’m sorry’

Finally, a breakdown in communication with a patient after a major obstetric complication increases the likelihood of a malpractice suit. After any such unexpected adverse event, showing empathy by saying “I’m sorry that this happened to you [or your loved one]” is critical. Also, practitioners need to assure patients that both the physicians and the hospital will conduct a proper investigation into what happened and will openly share that information with them in a timely fashion.

Empathy is not to be confused with an apology or an admission of guilt, unless after a careful review of the case, it is found that a medical error caused the harm.

Patients and families often turn to attorneys when they feel their questions are not being answered honestly or that information is being withheld. The common practice of “deny and defend” may worsen an already difficult situation. Lack of empathy and concern by healthcare practitioners after an adverse outcome may fuel anger and mistrust, motivating patients and families to seek answers and legal remedies. Disclosure training for physicians, along with close communication with risk management and legal department staff members, can help physicians learn the best ways to say, “I’m very sorry this happened to you.”

Summary

The scenarios described here may be associated with increased medical malpractice risk for ob/gyns. Solutions include carefully documenting our actions, avoiding over-extending our services, ensuring proper back-up in L&D, using simulation training to better prepare for obstetric emergencies, and training our teams to empower nurses and ancillary staff to take a greater role as our partners in patient safety.

The clinical information presented in these cases has been slightly altered to help maintain physician and patient anonymity.

References

1. American College of Obstetricians and Gynecologists. 2012 Survey results. http://www.acog.org/About_ACOG/ACOG_Departments/Professional_Liability/2012_Survey_Results. Accessed March 19, 2014.

2. Amon E, et al. 2013 SMFM Professional Liability Survey. Abstract 485. Am J Obst Gynecol. 2014;210(1S):S242–S243.