Elephantine: Can we talk about the “malpractice crisis” without the plaintiff’s bar?

by Courtroom Mama on March 16, 2010

Elephant in the Room

The term “elephant in the room” came up at the NIH VBAC conference a number of times in reference to the threat of malpractice as a factor in the availability of VBAC.  One of the speakers actually used the cutesy comic above—hey, I’m all about the engaging Power Point slides, but it is maybe just a little bit ‘splainey to say that it’s the elephant in the room (i.e. something nobody talks about) when some OBs say the word “tort reform” pretty much every time they’re given a mic.

The more I thought about it, the more the idea of the elephant resonated, but maybe in a different sense than the speakers intended.

There is an Indian parable about blind men trying to find out what an elephant is like. I could reconstruct the parable, or I could just copypasta this cute, sort of Kiplingified version in rhymed couplets:

The Blindmen and the Elephant by John Godfrey Saxe (1816-1887)

It was six men of Indostan
To learning much inclined,
Who went to see the Elephant
(Though all of them were blind),
That each by observation
Might satisfy his mind.

The First approach’d the Elephant,
And happening to fall
Against his broad and sturdy side,
At once began to bawl:
“God bless me! but the Elephant
Is very like a wall!”

The Second, feeling of the tusk,
Cried, -“Ho! what have we here
So very round and smooth and sharp?
To me ’tis mighty clear
This wonder of an Elephant
Is very like a spear!”

The Third approached the animal,
And happening to take
The squirming trunk within his hands,
Thus boldly up and spake:
“I see,” quoth he, “the Elephant
Is very like a snake!”

The Fourth reached out his eager hand,
And felt about the knee.
“What most this wondrous beast is like
Is mighty plain,” quoth he,
“‘Tis clear enough the Elephant
Is very like a tree!”

The Fifth, who chanced to touch the ear,
Said: “E’en the blindest man
Can tell what this resembles most;
Deny the fact who can,
This marvel of an Elephant
Is very like a fan!”

The Sixth no sooner had begun
About the beast to grope,
Then, seizing on the swinging tail
That fell within his scope,
“I see,” quoth he, “the Elephant
Is very like a rope!”

And so these men of Indostan
Disputed loud and long,
Each in his own opinion
Exceeding stiff and strong,
Though each was partly in the right,
And all were in the wrong!


So oft in theologic wars,
The disputants, I ween,
Rail on in utter ignorance
Of what each other mean,
And prate about an Elephant
Not one of them has seen!

So, for any readers who might happen to be in a high school English class and looking for a paper topic:

In some retellings, the meaning of this parable is that each of the blind men is right and that it’s just a difference of perspective. Couplets aside, I selected this particular retelling for a reason; the moral here is that without the big picture, we’re all wrong. As applied to VBAC, I think that until we have real data on the full extent of the “crisis” and its relation to VBAC, we’re all prating on about an elephant nobody has seen.

When I pointed out that malpractice attorneys feel like they are standing up on the side of right in a recent discussion with Dr. Nicholas Fogelson over at the AcademicOB/GYN, he lamented:

The thing some of them don’t understand is that they don’t really understand what is going on all the time. I’ve met plaintiff’s attorneys who have said “I have dealt with enough of these cases that I know the medicine better than the doctors do.” What??? Its that kind of attitude that’s just ridiculous.

And I have no doubt that it’s the case. In fact, I’m pretty sure I’ve heard them say dumb stuff like that, too. But then again, is it any less absurd for doctors to claim to have superior knowledge on the law? In the same thread, Dr. Fogelson—whom, it should be noted, I believe to be arguing in good faith and actually interested in effecting positive change, even if I disagree with his suggestion—throws in some conjectures about the elements of malpractice, whether “I’m Sorry” policies are exceptions to rules about the admissibility of party admissions (they are, that’s the point), and what the plaintiff’s bar thinks vis-a-vis every maloccurrence being traceable to an act of negligence.  Dr. Amy made a brief appearance on to the Unnecesarean to lob a couple of clumsy law bombs, including a case overturned on appeal, which would have gotten a first year law student a D- for legal research, and some very assertively incorrect statements about how legal precedent functions. They’re both great bloggers and I readily admit that they probably have superior knowledge to most in obstetrical medicine because, you know, they’re [claiming to be] OBs. But does that make them experts in all things?

Think of it this way: I could write you a will. I could help you close on a house. I might be able to get your traffic ticket dismissed. [ahem, hypothetically! I’m not your lawyer!!] But would you trust me to deliver your baby?

God I hope not!

Nevertheless, women are supposed to take it on faith that 1) there is, indeed, a crisis, and 2) that it affects VBAC availability in a legitimate way. Moreover, some suggest that they are supposed to take responsibility for doctors’ irrational fears by signing away their only hope of restitution if they are harmed by physician negligence. What? This seems a bit one-sided. Like I told Dr. Fogelson, it sounds a little like they’re holding VBAC hostage: sign away your rights and you’ll get your precious vaginal birth, muhahahaha! That is, of course, a joke, but there is an important underlying point: thus far, nobody has been able to present any evidence that doctors are being successfully sued based solely on bad outcomes. I believe it to be true, but it will take more than anecdata to convince me that it is actually such a huge problem that it couldn’t be mitigated by things like true informed consent (not pro forma!), no-fault compensation (or national health care for that matter), “I’m sorry” policies, and other prophylactic measures that address the psychological needs of a person with a bad outcome.

I keep hearing chatter that makes it sound as though the only real stakeholders who need to be at the table in addressing malpractice are the doctors and the patients. Nevertheless, we, as a society, have largely decided that we want doctors who charge money for their services to be privately accountable for their acts of negligence that injure people in the same way pretty much all other citizens are. As long as we continue to think this, the plaintiff’s bar will continue to be involved, so why not involve them in the discussion? I think that maybe this conversation is important enough that folks on all sides can set aside some of the hurt and animosity that mutual blame-shifting has wrought in order to figure out how to address the problem and maybe make it clear that practice bulletins aren’t supposed to be binding statements of standard of care, come up with some basic standards of informed consent, and give doctors a real assessment of their risk of malpractice suit. When your toddler has an irrational fear, don’t you open the door and show them there are no monsters in the closet? If I were an OB, I would absolutely want to see a talk by plaintiff’s attorneys about the ins and outs of malpractice suits and how to keep from being one of their cases (and if there’s one thing these guys can do, it’s bloviate). It’s also worth it for the plaintiff’s bar to actually hear that a substantial number of women—45% of the cesarean moms surveyed in the Listening to Mothers II survey—actually want VBAC and would have attempted TOL if given the chance.  So maybe they can stop putting up their websites about how terrifically dangerous VBAC is, hmmm?

I myself am grasping my way through all of this. My reason for going to law school was very justice-and-equality-centric, so the salient medicolegal issues in my analysis of the VBAC issue are the civil and human rights aspects. Surprise, guys! Malpractice isn’t the only legal issue! I never thought that I would find myself researching medical malpractice because, as I have said before, I have no soft place in my heart for malpractice attorneys. The ones I have met are usually pretty big jerks–not to mention super condescending–and an overall unlikable boys club. But I’m always hoping to be proven wrong. So I don’t have any answers, but I’m looking into ideas that have been floated as possible solutions to the healthcare crisis writ large (like health courts, although I am very, very sensitive to situations that leave the foxes guarding the henhouse, and I believe deeply in the democratic function of juries) and most importantly, I have a lot of questions about how any sort of malpractice reform will affect real women.

I’ll leave you with some food for thought. I just started reading this article by Lucinda Finley – “Hidden Victims of Tort Reform: Women, Children, and the Elderly” and had to stop because I almost choked on my cheerios. Think caps on noneconomic damages are a good idea? Maybe not so much. To wit:

One major reason why women, on average, recover more in noneconomic damages– and why a greater proportion of their total damages are for noneconomic loss– is that certain injuries that happen primarily to women are compensated predominantly or almost exclusively through noneconomic loss damages. These injuries include sexual or reproductive harm, pregnancy loss, and sexual assault injuries. The impact of these injuries–impaired fertility or sexual functioning, miscarriage, incontinence, trauma associated with sexual relationships, and scarring or disfigurement in sensitive, intimate areas of the body–is not primarily on the economic wage earning aspects of life. Rather, the impact is more in terms of emotional suffering and self-esteem–an impaired sense of self and ability to function as a whole person, or damaged relationships. These priceless aspects of life hold little economic worth in the market, so market-referenced economic loss damages are ill-suited and inadequate to compensate for them.

This is some of the first empirical data I’ve seen on the matter, and my mind is blown. I promise I’ll keep you updated as my research unfolds… and… like, an elephant never forgets? (groan! What’s with me and the animal idioms lately?!)