Even from the most pro-plaintiff perspective, over 80% of CP cases could not be attributed to the negligence of obstetric providers.
This "lottery" has certainly taken a heavy toll: In Washington State, for example, Benedetti and associates found that obstetricians' professional liability insurance premiums increased 61% between 2002 and 2004.2 To pay for those costs, 16% of ob/gyns in the area have taken out loans or liquidated assets, and nearly half have taken a pay cut.
Of more concern is the fact that during the same time period, more than 50% of ob/gyns in Washington State reported doing more cesarean deliveries (CDs), suggesting an increase in the practice of "defensive medicine." About 10% of Washington's ob/gyns also said they planned to cut down on deliveries or stop delivering patients entirely in the next year. That number is consistent with surveys by the American College of Obstetricians and Gynecologists, which suggest that every year, 14% of fellows stop practicing obstetrics.3
In my opinion, there is a widespread perception among physicians in general and ob/gyns in particular that the vast majority of medical malpractice suits are frivolous and precipitated by often unscrupulous trial lawyers seeking to maximize their own profits. This standard critique of the medical tort system has been challenged by Studdert and colleagues.4 They evaluated the merits and outcomes of 1,452 closed malpractice claims from five professional liability insurance carriers, which covered a mix of academic and community hospitals and physicians. Charts were reviewed by board-certified physicians, fellows, or senior residents who were trained to uniformly apply standardized criteria to determine whether an injury had occurred, and if so, whether it resulted from a physician error. The cases reflected care in a broad spectrum of disciplines, but ob/gyn cases were the most common (19%).
Studdert and colleagues noted that 56% of all claims received compensation, and the average payment was $485,348. Of these awards, 94% resulted from out-of-court settlements and only 6% from jury verdicts. Consistent with the claims of proponents of tort reform, only 21% of plaintiffs prevailed in court. Interestingly, 63% of injuries were adjudged by the physician reviewers to have resulted from errors, and of those cases, 73% resulted in payments. Conversely, payments were made in 28% of the cases in which the reviewers felt the injury was not a result of error. Put another way, in the majority of cases, payment or lack thereof was in keeping with whether injury was caused by error. When there was a discrepancy, payment was more likely to be made in the absence than in the presence of error. Opponents of tort reform use these data to support their claim that unfair outcomes are weighted in favor of defendants.