I would love to say that this is going to be the definitive post on medico-legal justification for the out of control cesarean rate, but I think that’s going to be a much much bigger project.
Here’s the short version: any time you talk about VBAC, the issue of medical malpractice comes up. There are several perceptions that go along with this “conversation,” summed-up here:
- Doctors are constantly beset with the threat of a medical malpractice suit
- Such suits are unjustified (i.e. the doctor did not actually commit malpractice)
- The people who bring these cases are just looking for a payout.
- This is all because of greedy malpractice attorneys.
I’ll address 4 first, because it’s the one I was most guilty of, and I think I’ll pick up the others along the way. Part of my silence last semester was that I was taking a humongous course load (may the record reflect, however, that I made straight A’s in my final year of law school. Pregnant. Parenting a toddler.). One of these classes was Medical Malpractice. You might ask yourself: why the hell did she take that class? Is she one of THOSE?!?! In fact, I asked myself the first question a few times, and the professor asked us on the first day of class as well.
Now this guy was probably the epitome of the slick malpractice attorney; think along the lines of My Cousin Vinny, but more Long Island and less Brooklyn, and tall. My answer to him: because I am a childbirth activist, and malpractice concerns are cited as one of the primary reasons for limiting women’s options and right to informed refusal of unnecessary surgery.
So he says to me: so we’re like Darth Vader to you, right.
Right. Exactly. You greedy attorneys and your 1/3 contingency fees are fucking it up for the rest of us, so just DIAF already.
He asked me if I had seen “The Verdict.” I said no – nobody in the class had. This upset him. “Why the hell did you come to law school then?!” Um, to Kill a Mockingbird? I don’t think that’s a bad answer…
Anyhow, as the semester pressed on, there were several things that I learned about sleazy malpractice attorneys. First of all, every single one of them has a client. Every single one of those clients has been somehow fucked up. In fact, I eventually watched the movie during the hazy days of bar study – days not unlike the first week of parenthood, but substitute the fog of “feed, burp, change,” for “outline, multiple choice, flashcards.” I needed inspiration, so I moved all my law-related movies up the ol’ Netflix queue. Turns out, the movie is about a woman who is injured by medical malpractice during childbirth and is left in a coma by administration of an inappropriate anesthetic. The drunkard ne’er-do-well Paul Newman, barely hanging on to his law license, is inspired by this young mother, and the nasty cover-up that took place to hide the malpractice that left her husband effectively a widower with a passel of kids. Gotta tell ya, I cried.
So it got me to thinking; we talk a hot mess about how overly litigious our society is, blah blah malpractice blah blah greedy. But the simple truth is that doctors DO occasionally really fuck people up – BAD. Some of the cases I read, I couldn’t handle in the queasy early days of pregnancy. Like one where a woman had been improperly prepped for a cauterization or something (I think they had dripped betadine on her sheets) and they LITERALLY CAUGHT HER ASS ON FIRE. Turn on the machines, and BANGO! Third-degree burns to the anus. Sometimes they cut off the wrong leg. Sometimes they fuck up a circumcision and leave a guy a eunuch. Without a private cause of action (aka a tort), what are you left with? Nada.
TORTS 101: In fact, that’s the way it works for ALL torts. I don’t know if it’s just that people don’t understand this, or that they are actually opposed to it, but if someone beats the crap out of me, even if the police haul them off and they are tried for assault, that’s the STATE’s case, not mine. It’s the People vs. Asshole, and I’m just a complaining witness. When he gets put in jail, I get the satisfaction that a bad person is now locked away (or… whatever… that’s another thing entirely), but I am still stuck with the bill from the ER, the reconstructive surgery to put my face back together, the money I lost because I couldn’t go to work. Society has been “made whole” again, but me? I just get that satisfaction…
So we, as a society, have come up with the idea of torts, the idea that a person should be made to pay for the harms that they commit to other people. Since we don’t have the stocks or the scarlet letter anymore, and you can’t force people to do nice things for you in restitution (pesky 13th Amendment, I’d really like for Douchey McBatterer to be my indentured servant to pay me off for the assault), we use money as a surrogate. For the most part, there are pecuniary damages, or the straight up costs of the tort (fixing my face, the ER bill, the time I lost at work), and nonpecuniary damages, a more nebulous concept of the pain and suffering cause by the tort (the pain, the PTSD I now suffer, the horrendous pain of the facial surgeries I have to undergo for the next year). This is intended to “make me whole” (resitution), and to keep people from doing shit like that again (deterrence). This is not too far from the ends of the criminal justice system: retribution (make ‘em feel sorry for what they did), and deterrence (keep them from doing it again, keep others from doing the same), but note that the criminal goals are much more society-focused than victim-focused.
Now in intentional torts, like battery, the tort I would sue my hypothetical assailant for, you have punitive damages as well. These are damages that are intended to punish the wrongdoer (or tortfeasor, the best word ever). It’s like restitution/deterrence-plus: what they did was SO bad, you want to make it hurt extra for them. For the record, this generally doesn’t come up very often in malpractice, which are negligence cases, which don’t carry punitive damages. Once in a while you get something CRAZYTIME, like the OB who carved his initials into a woman’s abdomen after performing a cesarean, but it’s pretty rare.
So if we as a society have decided that it’s appropriate for me to have to pay you if I break your lawnmower, or run over your foot, or set your house on fire, why should a doctor not have to pay if he sets your arse on fire? There used to be this thing, now defunct in most states, called “charitable immunity.” It meant that people who went to charity hospitals couldn’t sue, because beggars can’t be choosers, and you get what you pay for, and after all, who wants to sue the Sisters of St. Vincent de Paul. As it happened, people got really shitty care, and nobody really gave a fig because they were poor. Turns out that the deterrence factor makes a difference.
This is something that I don’t like very much because it reminds me too much of the whole Moral Compass thing that people like to use, arguing that without God, people would just devolve into a Lord of the Flies state of anarchy and hedonism, whereas I prefer to believe that people are ultimately good an altruistic because I’m a huge goody-goody and am wracked with guilt at the smallest transgression. See parents, Catholicism works even after your sheep flee the flock. Ah but which came first, the conscience or the Catholicism? The world may never know…
So if you’re still with me, you might have some misgivings about the sheer size of the payouts in obstetrical malpractice. Query: if a doctor commits malpractice during a birth and the baby comes out with, say, cerebral palsy, how much do you think it is going to cost the family to raise that child relative to how much it would have cost if the child were not born palsied? Will the parents magically start making more money to meet the shortfall? (in fact, if the birth injury is severe enough, one parent may have to stop working to care for a disabled child). How much will they have to pay in future medical costs? And remember how we’re having this debate about healthcare and how the costs are out of control and how more and more people are uninsurable because insurance companies are risk-averse? People throw hissy fits about medical malpractice reform being central to healthcare reform, but I think that health care reform will “reform” medical malpractice. People sue, in part, because malpractice is expensive for the victim.
As for compensation of attorneys, I don’t know a lot about that. What I do know is that they get absolutely nothing if they lose (this is to provide access to justice for people who wouldn’t otherwise be able to afford an attorney), and are out the costs of litigation, which are VERY high considering they have to pay experts to testify, review the medical records, etc. This means that the vast majority of malpractice cases never see the light of day because the attorneys need to pick a winner, and enough of a winner to cover the costs of the losers, which are most of the cases because, contrary to popular lore, medical judgment is an 800-lb gorilla defense. Basically, if reasonable minds can differ, the plaintiff loses. Period.
So, far from being a bunch of greedy people looking for a payout, you have people who are actually injured at the hands of doctors, with injuries that may cost them a lifetime of expense, going before juries that are likely to rule against them because of the general anti-plaintiff sentiment and virtual inviolability of the judgment defense, and the fact that the professionally-determined standard of care is basically an invitation to collusion. Under a “regional standard” regime, for example, if medical practitioners wanted to make the standard of care that every woman gives birth via vaginal bypass surgery, they can do that. Given the relative uniformity of the surgery, the low risk per individual surgery, etc., this is totally something that they could do under malpractice law – as a matter of other areas of doctrine, like antitrust or human rights or something, this won’t fly, but for the most part malpractice is not calibrated to fix this particular problem… there are a couple of exceptions, but I digress. The point is, if a person wins a verdict and payout, I’m not only willing to bet dollars to donuts that they actually deserved it, I’m probably go so far as to say that they represent an entire constellation of cases that didn’t win, but should have.
In my health law class, we discussed a somewhat troubling study that showed that a far greater number of deaths in hospitals were attributable to medical malpractice –and particularly medication errors—than anybody ever knew. That worries me. When I hear people talk about how 1/3 of every graduating class of med students has a malpractice case pending against them, I don’t worry as much about out of control litigious patients as I do medical schools matriculating students who are committing malpractice. Most of all, I worry that doctors aren’t doing very simple things that can help them protect themselves from malpractice.
A wise woman recently told me “nobody who cried at a demise ever got sued.” Now, factually speaking, I sort of doubt that that’s true, but it makes sense and appears to have been corroborated by studies. It makes you wonder – why is it that midwives somehow manage to practice without living in constant, crippling fear of malpractice suits, even when they occasionally have bad outcomes? Could it be, perhaps, that people feel less rancour –and thus less need for restitution—toward practitioners that treat them like full humans with the power to make decisions on their own behalf? Not that all doctors fail to do this, but I definitely can say that the doctor/patient power differential is a lot greater than that in the midwife/patient relationship, and a lot of it has to do with the socialization process of medical training. I am guessing it’s substantially similar to what we go through as legal practitioners: if you come off like the jerkface hotshot law school trains you to believe and act like you are, you’re likely to 1) not actually be listening to clients’ wishes, and 2) eventually get sued when you fuck up. It also seems like a little apology goes a long way. In that same vein of human connection, could it be that the further away we move from a system of healthcare where people know their doctors and their doctors know them, the less likely people are to hesitate when considering whether to sue?
I just keep thinking back to this really ugly thread on Feministing and how these hypercapitalist libertarians just kept saying “oh yeah, you want the hospital to allow VBAC so this woman can sue them? Fat chance!” and I can’t help but wonder whether a woman who does obsessive research like me and knows her chances of catastrophic outcome, has everything explained to her by a supportive obstetrician and signs consent forms to that end, and truly wants a vaginal birth would actually sue if the harms that she’s so aware of materialize. I have only heard of one person who was very unhappy to have had a VBAC, and this was one from the 1990s when they were pushing doctors to push VBAC as a cost saving measure without regard for the risks of using the usual host of unnecessary medical interventions on a scarred uterus. Interestingly, this makes me feel like it validates the need for the mythical maternal request cesarean… I’ll have to stew on that a little.
