SB 274, medical liability expert witness reform.
Utah
HB 135, rules, arbitration. Status: March 21, 2013, sent to Governor Gary Herbert for his approval. HB 135 provides that a party in a medical liability action or arbitration may not attempt to allocate fault to any health-care provider unless a certificate of compliance has been issued. HB 135 also requires that evidence from a medical review panel remain unreportable to a health-care facility or health insurance plan.
Summing up
Medical liability reform—the obvious need for it, the good reasons to do it, and the fact that it remains beyond reach—is a constant source of frustration among many ObGyns. Maybe Captain Sully can save the day.
How medical liability affects the ObGyn specialty
ACOG’s 2012 Survey on Professional Liability, our 11th survey since 1983, assessed the effects of professional liability litigation and insurance issues on the practice of obstetrics and gynecology.6 The survey, conducted under the direction of ACOG’s Vice President for Fellowship and Deputy Executive Vice President Albert Strunk, MD, JD, included segments on demographics, patient care, liability claims experience, and practice changes associated with the cost of liability insurance and the fear of litigation. The survey went to 32,238 Fellows and Junior Fellows. Of these, 9,006 completed the questionnaire. Here are major findings.
Provider profiles
A total of 72.5% of respondents provided both obstetric and gynecologic care, slightly lower than the percentage identified in the 2009 survey, which was 74.3%. Fewer than 7% of respondents provided obstetric care only; 19.8% provided gynecologic care only. Of those restricting their services to gynecology, 88.9% had previously offered obstetric care. The average age at which these physicians stopped practicing obstetrics was 49 years.
Cost of liability insurance
ObGyns spent an average of 12.4% of their gross income on liability insurance premiums in 2012, down from 18% in 2009.
How liability issues affected practice
Since the previous survey in 2009, 57.9% of respondents made one or more changes to their practice to mitigate the risk or fear of professional liability claims or litigation.
Obstetric practice. Among respondents who made changes to their obstetric practice, 27.4% decreased the number of high-risk patients they see, 23.8% increased the number of cesarean deliveries they perform, 18.9% stopped offering and performing vaginal birth after cesarean (VBAC), 11.5% reduced the total number of deliveries, and 6.2% stopped practicing obstetrics altogether.
Gynecologic practice. Respondents who changed their gynecologic practice cut back on surgical procedures (18.9%), stopped performing major gynecologic surgery (6.7%), and stopped performing all surgery (1.8%).
Other changes. Medical liability issues contributed to the decisions of 12.3% of respondents to choose salaried employment with a hospital, government, or other institution.
Claims experience
Obstetric claims were likely to involve a neurologically impaired infant (28.8%) as the primary allegation, followed by stillbirth or neonatal death (14.4%).
Other variables involved in obstetric claims included electronic fetal monitoring (20.9%), shoulder dystocia and/or brachial plexus injury (15.5%), and actions of ObGyn residents (11.4%).
Gynecologic claims. Survey respondents reported a total of 1,496 gynecologic claims. Major injury to the patient was the primary allegation of 29.1% of these claims. A delay in diagnosis or failure to diagnose was the second most common primary allegation (22.1%), followed by minor injury to the patient (20.7%).Of the claims involving a delayed or missed diagnosis, 41.8% involved cancer. Of these, breast cancer was the most frequent type of cancer (39.1%), followed by uterine cancer (20.3%), ovarian cancer (14.5%), and cervical cancer (10.9%).
Many gynecologic claims (44.4%) involved surgical complications arising from hysterectomy (28.7%) and laparoscopic procedures (14.6%).
Claims outcomes. A total of 43.9% of claims were dropped or settled without any payment on behalf of the ObGyn. Of these, 29.0% were dropped by the plaintiff, 11.2% were dismissed by the court, and 3.7% were settled without payment on behalf of the ObGyn.The average for all paid claims was $510,473.
The average payment for claims involving a neurologically impaired infant was $982,051. Other average payments for obstetric claims include $364,794 for “other infant injury–major” and $271,149 for stillbirth or neonatal death.
Average payments for gynecologic claims include $407,500 for a failure to diagnose breast cancer and $315,633 for “patient injury–major.”
Most challenging locales. It will come as no surprise to many readers that average medical liability payouts are especially high in six states:
New York - $677,866,050
Pennsylvania - $319,710,250
Illinois - $242,108,800
New Jersey - $221,170,750
Florida - $218,123,050
California - $215,519,200.
Fifty-eight percent of payouts nationwide were for female patients.7
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