Born in the USA (29 page)

Obstetricians are sued more than physicians in any other specialty. In the United States, a member of ACOG can expect to be sued 2.53 times over the course of his career, and in 1999, 76 percent of ACOG fellows reported that they had been sued at least once so far.
²
Obstetrics-gynecology is considered a “high-risk” specialty by malpractice insurers, and in 2000, obstetricians were
listed first by the Physicians Insurance Association of America among twenty-eight specialty groups in the number of claims reported against them.
³

As a result, fear of litigation has a profound influence on all aspects of American obstetrics. It affects attitudes and policies in obstetric organizations and hospitals, and it affects the behavior and judgment of individual obstetricians. After years as a practicing physician, I can say that fear of litigation is a factor for many doctors when they decide on a care plan for a patient. So it was no surprise when a Harris survey found that three-quarters of physicians “feel their ability to provide quality care has been hurt by concerns over liability cases.”
⁴

When obstetricians in the United States are asked why there is such a gap between the way scientific evidence says they should be practicing (regarding interventions) and the way they are actually practicing, they frequently defend their actions by saying that interventions are necessary to protect themselves from litigation. In effect, what these doctors are saying is that they view themselves as victims of the legal system and they feel that this justifies making treatment choices that have nothing to do with the patient or the patient's condition. This is a striking admission.

Obstetricians spend a great deal of energy acting out their victim role and bemoaning what they've labeled “the litigation crisis.” At professional meetings it is always a popular topic, and I can assure you that the emotions can become very intense. At a recent UCLA medical alumni meeting, I listened to discussions where angry doctors railed against “mercenary attorneys” and the “stupid families” they recruit.

Yes, most American obstetricians have been sued, and yes, there are high insurance premiums, but I don't believe these two realities are enough to explain obstetricians' extreme attitude. It is obvious to me that obstetricians have an enormous fear of ending up in court. Court horror stories circulate frequently among doctors, and the theme of many of these stories is that a doctor in court is not in control, out of his element. Furthermore, as discussed in
chapter 2
, doctors don't admit that they make mistakes, and the whole point of litigation is to identify and prove that a doctor indeed made a mistake. This is humiliating and shatters an obstetrician's inflated sense of security. In an obstetrician's daily world, everyone with whom he comes in contact looks up to him and follows his orders. In a courtroom, an obstetrician may even be looked down on. In
chapter 2
, I stated my view that being an obstetrician in the obstetric world is like living as an animal with no natural predators. A courtroom is not in the obstetric world. Predators lurk in the courtroom.

This means that when an obstetrician provides prenatal care to a woman or “attends” a birth, the possibility that the patient could end up suing if something goes wrong is never far from his mind. This can only contribute to the antagonistic “us versus them” mentality discussed in
chapter 2
and hamper the doctor's ability to be compassionate with a birthing woman under his care.

The constant threat of litigation also means that many obstetricians in the United States go about their practice with a defensive mindset. The decision to do a C-section, which we might call the ultimate intervention, is often based not on medical need but on a desire to avoid litigation. There is a widespread belief among obstetricians that if a C-section is not done and the baby is not perfect, the doctor takes the risk that he will be accused of not doing “everything possible” to address complications or potential complications. Conversely, when a C-section is done, it appears that the doctor made every effort to safeguard the health of the woman and baby. Doing a C-section has become a kind of insurance against litigation. This is because, in our society, surgery is perceived as a definitive cure. Regardless of what an obstetrician may or may not do during a women's labor (such as performing interventions that put the mother and baby at risk), performing a C-section negates possible criticism. The perception that surgery represents the ultimate human effort exists despite the fact that, as we saw in
chapter 3
, when an obstetrician performs a C-section unnecessarily, he puts the mother and baby at risk.

On a more subtle level, an electronic fetal monitor (EFM) is often used defensively as well. Using a machine to monitor contractions and the fetal heartbeat may seem harmless enough, but using an EFM routinely on every woman in labor interferes with the woman's ability to move (stand up, sit, walk, etc.), and a lack of movement increases the risk that her labor will slow or even stop. Furthermore, studies have shown that routine use of an EFM does not increase the chance of a healthy baby but
does
increase the chance that invasive interventions such as C-section, which carry significant risks for both the woman and her baby, will be done unnecessarily. However, for many doctors, routine use of an EFM is perceived as protection. If there is a bad outcome and a doctor is sued, he can bring the EFM printout to court and say, “See, the machine says the baby was fine,” or conversely, “See, the machine says the baby was in distress, so the C-section was necessary.”

There are several serious problems with defensive obstetrics—that is, doctors choosing practices that they believe will help them avoid negligence
claims. A fundamental principle of medical practice is that whatever the doctor does must be done first and foremost for the benefit of the patient. If a doctor picks up a scalpel and cuts open a pregnant woman's belly because the doctor is afraid of being sued or afraid of rising insurance costs, that doctor is not practicing medicine. He is practicing fear and greed.

Defensive thinking has spread to every part of obstetrics practice. In
chapter 4
, I discussed how obstetricians use a false diagnosis to protect themselves from litigation. In cases where a woman and/or her baby are harmed by the use of Cytotec for inducing labor, it is common to find the diagnosis “postdate” in the patient's chart as the reason for the induction, and then, on closer examination, to discover that the baby had not been late after all.

In
chapter 3
, I described a case in which a doctor's defensive attitude was behind a poorly conceived study that led to a baby's death. An obstetrician decided to look at using a prostaglandin to induce labor in women who'd had previous C-sections, though the drug's label specifically says that it should not be used in this way. The study was a disaster, and the obstetrician later admitted that one of the primary reasons for undertaking it was that he and other doctors in his hospital wanted to use the drug, had in fact already been using it, and hoped their research would produce “evidence” of its safety that would protect them from litigation.

Following is another story of what happens when research is conducted to protect doctors from litigation. In
chapter 4
, I told of a woman who died following a Cytotec induction that led to a condition called amniotic fluid embolism (AFE). There is evidence that the number of women dying from AFE in the United States is increasing, and I have believed for some time that one reason the numbers are going up is that this diagnosis has become popular among doctors who have made an error that led to a woman's death and have chosen a diagnosis that may not be accurate but that they believe will help their case if the patient's family decides to sue.

In 1941, two physicians, Steiner and Lushbaugh, first identified eight cases of a syndrome they named “amniotic fluid embolism,” in which amniotic fluid containing baby's skin cells, hair, and so on, leaks into the mother's bloodstream, blocks lung and heart functions, and, in 80 percent of cases, causes the woman's death.
⁵
Synthetic oxytocin (Pitocin) and other pharmacological agents now used to stimulate the uterus were not available for clinical use in 1941, but as these drugs gained popularity for inducing and augmenting labor in the 1960s and 1970s,
⁶
doctors observed an association between the use of uterine stimulants and AFE, and there was general
consensus that inducing or augmenting labor with drugs increases the risk of AFE.
⁷

Then in 1979, M. Morgan, a researcher, published a survey of the English literature on AFE that reported on 272 cases.
⁸
He wrote that although there is an alleged association of AFE with the use of uterine stimulants to accelerate labor, their use was mentioned in only 22 percent of cases. He concluded that in view of the very wide use of accelerated labor and the rarity of amniotic fluid embolism, there must be no direct association between the two.

For a number of reasons, Morgan's paper and conclusions were not scientifically valid.
⁹
The study reported merely anecdotal evidence based on cases found in a review of the literature (not an experimental trial or a case control study), his reasoning was scientifically flawed, he used an incorrect comparison group, and many of the cases he looked at were from the 1940s, before uterine stimulants were even used.

Then in 1990, Steven Clark, an obstetrician, reviewed the issue of a causal relationship between using drugs to stimulate the uterus and AFE.
¹⁰
There were no new data and no new cases in Clark's paper. He theorized about the pathogenesis of AFE and then relied on Morgan's paper, based on faulty scientific methodology, to emphatically claim that there is clearly no relationship between the use of oxytocin and the development of the AFE syndrome.

This statement started an assumption train that continues to the present day and has become the basis for the belief that AFE is something that “just happens”—a condition that doctors can neither cause nor prevent—in other words, the perfect defense in court. It was not until much later that we learned that at the time he published his paper, Clark was involved in a number of lawsuits involving AFE and had been brought in to testify that the doctors and hospitals were blameless because there is no relationship between uterine stimulant drugs and AFE.

In 1993, ACOG weighed in on the issue with a predictable opinion: “In the past, oxytocin was sometimes implicated in the genesis of amniotic fluid embolism syndrome. However, such a relationship has been refuted on both statistical and theoretical grounds.”
¹¹
Two papers were listed in support of this statement: Clark 1990 and Morgan 1979. ACOG called Morgan's paper “statistical grounds” and Clark's paper “theoretical grounds” and failed to recognize the fundamental scientific flaws in both papers. It is important to note that it was in the early 1990s that U.S. obstetricians began to use misoprostol (Cytotec) for induction of labor and induction
rates were rapidly increasing.
¹²
Consequently, it was becoming more and more important to claim that uterine stimulant drugs were not associated with AFE.

In 1988, Clark established a national registry of AFE cases by inviting individuals to submit cases. Sixty-nine charts were submitted and forty-six met the criteria for inclusion. The registry accepted cases dating back to 1983. The cases were then analyzed and Clark and colleagues published a paper in 1995.
¹³
Again, however, several significant mistakes were made in the analysis, including an incorrect comparison group, rendering the study invalid.

In their 1995 paper, Clark and colleagues concluded by urging caution and saying that the authors fully recognize the potential biases of the registry, but they nevertheless reinforced Clark's previous finding, saying that their observations appear to refute the concept of a causative relationship between oxytocin and AFE on a clinical basis, supporting the statement of ACOG that such a relationship has been refuted on both statistical and theoretical grounds.

It is easier to understand how this inaccurate conclusion was arrived at when we consider that of the forty-six AFE cases collected and analyzed in his 1995 article, Clark, the senior author, had been retained by lawyers in 75 percent of them to testify that the condition was not preventable or treatable and that there was no relationship between AFE and induction of labor. Sadly, Clark has admitted destroying all the data used in the study—a most unusual and scientifically improper act, as it meant that the results could not be questioned or further analyzed.
¹⁴

Following the 1995 paper by Clark and colleagues, the conclusion that there is no association between the use of uterine stimulant drugs and AFE began to find its way into obstetric textbooks. In the widely read and quoted twentieth edition of
Williams Obstetrics
published in 1997, of which Clark was one of the chief editors, in the section on AFE, there were seven references to papers that include Clark as an author.
¹⁵
The text stated categorically: “There is no causal association between oxytocin use and amniotic fluid embolism, and the frequency of oxytocin use is not increased in these women compared with the general obstetrical population.”
¹⁶
The statement about the need for caution had disappeared.

In 1998, ACOG repeated its earlier position: “Oxytocin use has not been reported to be associated with this [AFE] complication.”
¹⁷
This statement was supported by four references: Morgan 1979, Clark 1990, Clark et al. 1995, and Martin 1996. (There are no new cases in Martin's paper as it is
only a short review.)
¹⁸
In 1999, ACOG made a strong statement regarding oxytocin use in labor and AFE in one of the organization's publications: “Although AFE was once thought to be associated with oxytocin-induced labor, there is no causal relationship between oxytocin use or antecedent hyperstimulation and AFE.”
¹⁹
This statement was supported by two references, Morgan 1979 and Clark et al. 1995. Since it had been well established for years that uterine stimulant drugs often can lead to uterine hyperstimulation—too frequent contractions—it is interesting to note that antecedent hyperstimulation (too rapid contractions of the uterus during the labor before the onset of AFE) is now included in the denial. Since then, Clark's conclusion, based on faulty science and almost certainly designed to protect physicians from legal responsibility in maternal deaths, has continued to appear—expressed with ever-increasing certainty—in obstetric textbooks and ACOG publications, including
Williams Obstetrics
, 21st edition (2001); ACOG,
Prolog: Obstetrics
, 5th edition (2003);
Danforth's Obstetrics and Gynecology
, 9th edition (2003); and
Critical Care Obstetrics
, 4th edition (2004).