Obstetrical malpractice claims make up only a portion of all cases, yet they demand an undue amount of attention from risk managers and defense attorneys. The tragedy of an injured child can pose a challenge to defending or settling the case, one reason the payouts can be far higher on average than other claims.
While much of malpractice prevention efforts focus on physicians, nurses can be at risk of malpractice charges in this specialty.
Obstetrics is the one nurse specialty consistently experiencing the highest financially severe payments in both past and present Nurses Service Organization (NSO)/CNA closed claim reports, says Jennifer Flynn, CPHRM, manager at Aon Affinity Healthcare Risk Management. The most recent report, published in 2015, includes an analysis of obstetrics-related claims and injuries. The authors studied a five-year view of closed claims with an indemnity payment of $10,000 or greater made on behalf of a nurse to an injured third party.
Obstetrics-related claims accounted for 9.8% of all claims, Flynn notes. On average, NSO & CNA paid $397,064 for OB-related claims, which is more than double the overall average paid indemnity for all nurse closed claims of $164,586.
The high severity of OB claims reflects the lifelong medical cost for patients in a persistent vegetative state, who require ongoing nursing care, Flynn explains. Of all obstetrical injuries, fetal/infant birth-related brain injuries had the highest percentage of closed claims, representing 72.5% of all OB claims.
In all these cases, the patients argued the claims involved one or more of the following nursing errors:
- failure to timely report a complication of pregnancy/labor to the practitioner;
- failure to monitor and timely report the mother’s and/or baby’s vital signs;
- failure to identify and report observations, findings, or changes in condition;
- improper or untimely nursing management of an OB patient and/or complication;
- failure to invoke the chain of command.
Risk Reduction Tips for Nurses
Flynn notes that obstetrics, like some other specialties, involves unique nursing skills that create additional risks. She offers the following risk management recommendations for nurses working in higher-risk clinical areas:
- Follow established policies, procedures, and clinical protocols regarding the assessment and management of each patient’s labor and delivery.
- Attain and maintain up-to-date knowledge and skills in the interpretation of electronic fetal monitoring tracings.
- Agree on and utilize common language and interpretation of electronic fetal monitoring tracings among all members of the patient care team, including, among others, physicians, nurses, and technicians.
- Maintain fetal and maternal monitoring during transport to diagnostic test locations or operating room and during the patient’s preparation for a cesarean section.
- Document communication with other members of the healthcare team throughout the patient’s labor and delivery.
- Understand and follow the nursing scope of practice requirements related to management of medications for cervical ripening and labor induction or augmentation.
- Know and follow the chain of command, as needed, to ensure timely and appropriate nursing and medical care.
- Utilize the chain of command to address medical orders outside the standard of care as defined by nursing and medical staff policies and protocols, professional guidelines, and/or the state nurse practice act.
- Participate in drills for the management of obstetrical emergencies, including uterine hemorrhage.
- Document in a timely manner all patient assessments, fetal tracing assessments, patient care services, and contacts with other healthcare professionals, as well as the patient’s symptoms, responses to treatment, and complaints.
Fetal Monitoring Often at Issue
Fetal monitor strips feature prominently in many OB malpractice cases, Flynn notes.
“Nurses must carefully review fetal monitor strips throughout labor and delivery to monitor the health of mother and baby. If the nurse fails to properly monitor the mother’s and baby’s vital signs or fails to act swiftly once the fetus begins showing signs of distress, serious injury may occur, ranging from mild to traumatic,” she says. “In the most severe cases, the baby may suffer brain damage from oxygen deprivation.”
When a birth injury has occurred, the fetal monitor strips can be invaluable pieces of evidence — either in the defense of the defendant nurse or for use by the patient to show harm was done, Flynn says. They will show when the fetus went into distress and for how long. This information may be used to show that the nurse acted or failed to act to the distress in a timely manner. Additionally, fetal monitor strips become part of the medical record, therefore becoming part of the malpractice lawsuit, Flynn explains.
Zika Claims May Be Coming
Risk in OB cannot be properly addressed until a system is in place for tracking and recording unusual occurrences, Flynn says. The most common method for describing untoward events is the incident report form, which should capture relevant, objective information regarding the event and surrounding circumstances, notify management of a potentially serious or litigious situation, and facilitate gathering of information that tracks and trends adverse events.
“Incorporating good, consistent risk control strategies and habits into your practice can help reduce or eliminate those risks,” Flynn says. “Some of these recommendations made may seem like ‘no-brainers,’ but many times we see cases where these simple steps are not done at all or not done consistently across an organization, which leads to poor patient outcomes.”
The future may bring obstetrical malpractice claims related to the Zika virus, says David E. Richman, JD, a partner in Medical Malpractice Defense Practice Group with the law firm Rivkin Radler in Uniondale, NY. Zika is spread by mosquitoes in some areas and can be passed from a pregnant woman to her fetus. Infection during pregnancy can cause severe birth defects.
“We may see cases coming out of patients with Zika, most likely related to the diagnosis and what advice is given to the parents in regards to potential termination of the pregnancy,” he says. “There are a lot of issues with false negative and false positive results, and the histories being taken of patients. I think the risk management community needs to be aware of this cutting-edge issue and take steps to communicate with the clinical staff.”
Richman also cautions that providers still must be on guard for one of the worst challenges: the obstetrical patient with little or no prenatal care, who now becomes the physician’s responsibility at time of birth. It can be worthwhile to support community intervention programs for these patients to educate them about the need and availability of prenatal care programs, he says.
Cesarean sections are another common point of contention, but not always just whether the procedure was clinically necessary, notes Bobbie Moon, JD, shareholder with the law firm of Sandberg Phoenix & von Gontard in St. Louis. She recently worked on a case in which neither of the plaintiff’s expert witnesses would say the standard of care required a cesarean section, but they were critical of the defendant physician for not explaining the risks and benefits enough, implying that the patient may have chosen to undergo an elective cesarean section if she had fully understood.
“I think that argument went over the jurors’ heads to some degree, but the informed consent issue is an angle that works around what you absolutely had to do,” she says. “Some plaintiffs’ attorneys are getting around the idea that doctors can’t predict the future with absolute certainty by saying you needed to let the mom know. We’re seeing more and more detail on that. Did you tell the mom she was having decelerations and this might mean a problem in the future? They ask, ‘Doesn’t the mom deserve that information?’”
Moon worked on another case in which the plaintiff’s attorney questioned why the mother was not informed about certain alarms being turned off during her labor.
“It’s all about what did you tell the mom,” Moon says. “There’s not a very good documentation often about physician or nurse discussion of risks and benefits. Pitocin is always a nightmare, so it would be helpful if your protocol had the nurse take time to document that she discussed the risks with the patient and the patient understood the doctor thought this was best for her at that time.”
Texting also is becoming an increasingly common element in malpractice cases, says Maureen Barnes, vice president of risk management and patient safety at Cassatt Insured Group, a captive insurance group in Malvern, PA, that provides risk management and patient safety programs to its member hospitals and physicians.
With the timeline so crucial in most OB cases, plaintiffs’ attorneys often obtain text records to prove their case or dispute testimony about the timing of events, Barnes says. The texts sometimes lead the plaintiff’s attorney to segue into the audit trail for the electronic medical record (EMR).
“If this physician is going to say he was called away to another delivery at a certain time, the metadata for the EMR ought to be able to support that,” she says. “It creates a behind-the-scenes story of who entered what in the record at what time. Sometimes, that is good for us, showing the physician was acting on available information at the time, that the lab result everyone is focusing on actually wasn’t available to the physician at that critical time.”
SOURCES
- Maureen Barnes, Vice President, Risk Management and Patient Safety, Cassatt Insured Group, Malvern, PA. Telephone: (484) 321-5593.
- Jennifer Flynn, CPHRM, Manager, Aon Affinity Healthcare Risk Management, Hatboro, PA. Telephone: (215) 773-4513.
- Bobbie Moon, JD, Shareholder, Sandberg Phoenix & von Gontard, St. Louis. Telephone: (314) 446-4261. Email: [email protected].
- David E. Richman, JD, Partner, Rivkin Radler, Uniondale, NY. Telephone: (516) 357-3120. Email: [email protected].
While much of malpractice prevention efforts focus on physicians, nurses can be at risk of malpractice charges in this specialty.
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