Born in the USA (30 page)

Since the 1990s, there have been sufficient case reports of AFE after Cytotec induction in the literature, and enough reports have been sent to both the U.S. Food and Drug Administration and Searle, the manufacturer of Cytotec, to justify including AFE as one of the risks of using Cytotec on pregnant women, both on the package insert and in the warning letter to all U.S. physicians discussed in
chapter 4
.
²⁰
Nevertheless, AFE remains a popular diagnosis to use to protect a doctor or hospital from culpability when a woman dies in or near childbirth. I am familiar with more than one hundred cases of maternal mortality after labor induction with uterine stimulant drugs. In two cases (one in upstate New York and one at Yale—New Haven Hospital), the doctors who conducted the autopsy on the woman stated that AFE was the cause of death, and then, in both cases, gratuitously inserted into their autopsy reports a statement saying that in cases of AFE, no one can be blamed. Such statements are completely inappropriate in a pathologist's report, but they are hardly surprising, given the culture of tribal loyalty among doctors, obstetric silence or “omertà,” and the fact that a doctor who says anything against another doctor in a courtroom—even in cases of serious malpractice—puts his career at risk (see
chapter 2
).

And now it looks as though the days are over when obstetricians, faced with a woman who has died during childbirth, are able to play the AFE “get out of jail free” card. First came my paper published in 2005 reviewing the
existing scientific literature on AFE and demonstrating that it was false science that was used to try to deny any connection between uterine stimulants during labor and AFE.
²¹
Then in 2006, the first ever large population-based study of AFE cases, using a cohort of three million hospital births, showed nearly twice the risk of AFE (and three and a half times the risk of fatal AFE) when uterine stimulants were used to induce labor.
²²

In malpractice cases, for the most part, it is not difficult for defense lawyers to find sympathetic obstetricians to come to the aid of their clients and testify when there has been an adverse outcome and the doctor is accused of malpractice that “Dr. X chose the right course under the circumstances,” or to testify, as Steven Clark has done so many times with AFE, that research shows a particular outcome was not preventable. But the lawyers who represent patients have a terrible time finding doctors willing to testify. In most cases, they are forced to bring in a physician from another state because local doctors are too afraid of retribution (which can take many forms, from loss of referrals from other doctors to removal from hospital staffs). I am sometimes contacted by lawyers asking if I would help them find a doctor in their area willing to testify.

A defensive mindset hurts the obstetrics system in the United States in many ways, but perhaps the strongest argument against it is simply that it doesn't work. Despite the fact that three-quarters of practicing physicians have effectively admitted to practicing defensively, there has been no slowdown in litigation as a result. This suggests that, at least to some extent, fear of litigation has become an excuse that allows doctors to continue to use interventions such as induction of labor and C-section that they prefer to use for other reasons. It also illustrates that doctors' fear of the “litigation crisis” has become a self-fulfilling prophecy.

When obstetricians, undoubtedly encouraged by the insurance industry, which stands to gain enormously by legislation to cap awards to families, talk about the litigation problem, they tend to blame hysterical women, greedy lawyers, and an unfair legal system. For the benefit of the media and politicians, they paint a picture of a legal system that is completely out of control. But research sponsored by the Institute of Medicine has shown this “crisis” to be a myth. One study conducted by two eminent professors looked at obstetrics and gynecology malpractice jury awards in forty-six counties in eleven states over five years. They found that the accepted wisdom blames the legal system for the problems faced by doctors. They state further that physicians and commentators have argued that there are too many lawsuits, too many jury awards for plaintiffs, and too many large
awards in an unpredictable fashion. In contrast, their study found that few of these cases go before a jury, that plaintiffs do not usually win, and that there are identifiable patterns in what juries decide in the cases that come before them.
²³

The truth is that obstetricians bring litigation on themselves when they practice vigilante medicine such as Cytotec induction of labor and make little or no effort to develop an evidence-based practice. Clearly, if physicians waited to adopt new interventions until there was sufficient scientific evidence showing that the benefits outweigh the risks, it would result in fewer risks to the patients, reduce the chance of adverse outcomes, and reduce the chance that litigation will follow.

Another reason there is so much obstetric litigation is that most U.S. hospitals do not have an effective complaint process for women and families who have had a bad birth experience and want information on what went wrong. There is a movement in the United States toward transparency and accountability in health care services, but we still have a long way to go. Secrecy and self-protection are still the norm. When there has been a bad outcome at a birth, most attempts to get information from doctors and hospitals are stonewalled, sometimes in subtle ways.

Most hospitals have someone called a “patient liaison” whose job it is to meet with a family that has a grievance or suspects that a mistake was made. Liaisons are usually women (as one might expect) and tend to be highly paid, for they have a challenging job. A staff member of a department store complaint department can almost always satisfy a customer by quickly agreeing that, yes, the clerk was rude or incompetent, or, yes, the product was defective. All they have to do is apologize and reimburse the customer. But a hospital's liaison can never admit that a doctor or other staff member was incompetent or made a mistake. Instead they must “spin” the situation to put the hospital and doctors in the best possible light. It is a liaison's job to convince patients that there has been no malpractice. It is not her primary job to assist patients in getting all relevant information or resolving their issues. It is important to remember that no matter how sympathetically she listens, a patient liaison is a hospital employee and on the hospital's side. I have personally seen that liaisons will participate in a cover-up when necessary.

There are various laws that protect patients (discussed later in this chapter), but most patients don't fully understand the laws that protect them, and in my experience doctors and hospital “spin doctors” are in no hurry to educate them. It can be complicated because, although basic patient
rights are insured by federal law, some rights, for example those regarding informed consent and disclosure of information, partly fall under state laws and vary from state to state. All hospitals that receive federal funding (about 80 percent of hospitals) must have a chief compliance officer and some form of “internal grievance process,” but the details vary greatly from one hospital to another. Many patients aren't even aware that a complaint process exists and many hospitals are not eager to inform them. Those families that do file a complaint are likely to run into obstacles: hospital records that have been “lost” (the law says that a patient's medical records belong to the patient), fees required at every step in the process (e.g., for making copies of records), strange delays, and long, unintelligible legal forms. Hospitals work hard to attract maternity patients, and they work equally hard to keep any complaints hush-hush. Their goal is to appease the family while showing them in every way possible that they are ungrateful and irresponsible to complain.

Ironically, a very persistent, legally savvy patient can sometimes obtain information from a hospital without going to court. But for the average citizen who suspects that she has been wronged by an individual doctor or a powerful medical institution, going to court is the obvious answer. That is what our civil courts are for, after all. When a family can't get answers to their questions about their birth, it is perfectly reasonable for them to turn to the legal system that is there to protect them.

Another cause of obstetric litigation that we don't hear much about from doctors and hospitals is the betrayal and anger patients feel when their baby is damaged or dies. I believe these feelings are, at least in part, the result of false promises made by doctors and hospitals. Doctors and hospitals have a dilemma. They know perfectly well that childbirth does not always go smoothly, and may even result in the death of the woman or baby. But with maternity care in the private sector as a big money maker, doctors and hospitals must compete for patients. To survive, they must put their best foot forward, stressing their strengths and downplaying any negative aspects of the care they provide. There is a constant tension between the need for a successful marketing strategy and the need to behave ethically and professionally as medical providers.

In order to convince birthing women to give up the comfort and security of their homes and give birth in hospitals, doctors and hospitals find it necessary to feed pregnant women and their families promotional statements in pamphlets and in advertisements on radio and television that come extremely close to promising a perfectly safe birth and a perfect baby.
Come tour our lovely birthing rooms (but don't try to find out our obstetric track record, because we're not going to tell you). Often hospital maternity ads are not exactly lies, but neither are they responsible in the sense of providing balanced information on what may happen. That hospitals take this approach is an inevitable consequence of the marketplace for maternity services. The fact that patients believe the hype is probably due in part to their desire to believe and in part to the widespread view that with modern technology, a 100 percent safety record is actually feasible. But if you play God, you will be blamed for natural disasters. There is no country in the world where babies do not die or where women giving birth do not die. In the United States, more than one thousand women die every year around the time of birth, and around thirty-five thousand babies die every year around the time of birth—and sometimes it is due to a mistake in care.

Throughout history, women have accepted this harsh reality as part of the human condition, but attitudes have shifted in recent decades. Now we find obstetricians writing in the medical literature that childbirth has become very safe for both mothers and babies.
²⁴
(This is the prevailing attitude despite the fact that the rate of women and babies dying is going up, so it is getting less safe, not more safe, to give birth in the United States.) Of course, average women don't read the medical literature, but statements like this reflect the obstetric attitude most doctors project to their customers—we are doing the best possible job and should never be challenged. As a result, parents have come to expect a perfectly safe birth. It is no surprise that when something does go wrong they feel deceived. But instead of understanding their role in generating false hopes, obstetricians turn right around and blame families for their expectations. In the very same article, the authors object to a couple's expectation of a perfect baby.
²⁵

Obstetricians, hospitals, and organizations such as ACOG invest an enormous amount of time and money in avoiding litigation and hampering the litigation process. Although they are quick to hold news conferences to tell the public about the awful litigation crisis—ACOG has issued eight news releases in the past two years on obstetric liability issues
²⁶
—they make every effort to prevent the public from finding out about individual cases that might give women, families, and lawyers ideas about the mistakes being made during labor and birth.

When there is a bad outcome at a birth, the hospital internal “peer review” committee—consisting of fellow clinicians or peers in that hospital—will investigate, but these meetings are always private, and investigation results are not admissible in court. This confidentiality versus transparency
issue is complex. On the one hand, if members of a peer review committee are not certain their findings will be confidential, they will not be open and honest and unafraid to be critical of their peers. This eliminates the possibility of learning from mistakes and improving practices and protocols at the hospital.

On the other hand, when investigations are kept private, transparency is lost. We lose the possibility that doctors who are not on the committee will learn from peer-reviewed cases as well as the ability to consider these cases in research. If a lawsuit ensues, valuable analysis—often the real truth of what occurred—cannot be revealed in court. And a family whose life has been profoundly affected is denied information. Certainly this level of confidentiality is not found in any other industry and is not fair to women and families.

The British have found a middle ground in the confidentiality/transparency issue in the form of a special investigation process for maternal mortality cases. When a woman dies around the time of birth, a group of experts (none of whom is on staff at the hospital in question) conduct a thorough investigation. When the investigation is completed, the investigators review their findings in a confidential meeting held at the hospital and attended by all staff involved in the case. This allows the staff to learn from the case and, if necessary, change their practices.

All names and other identifying details are then removed from the investigation data and the data is grouped with other maternal mortality data for the country. Every three years a government report is published that includes a thorough analysis of all cases. The report is available to everyone (practitioners, scientists, politicians, and the public). Medical researchers in countries that do not have this level of transparency in maternal mortality cases (such as the United States) use the data as well. For example, the data in
chapter 3
on increased maternal mortality in elective C-section are from this British report. However, while the British maternal mortality system is certainly an improvement over what we currently have in the United States, it does not go much further in honoring the rights of families.