Malpractice risk drives cesarean sections
The risk of malpractice allegations is a major barrier to reducing caesarean rates, says Charles W. Fisher, JD, principal with the law firm of Kitch in Detroit. He has been involved in many malpractice cases regarding birth injury and c-sections. The Joint Commission is right to question the current c-section rate, Fisher says, but before handing out sanctions, they should address what protections they can put into place against lawsuits if doctors follow their recommendations.
Before electronic monitoring, the c-section rate often was quoted as being about 3-4%, he notes. Without scientific testing, it was assumed that the fetal monitor and c-sections would prevent brain damage and/or death.
Subsequent to the influx of monitoring into virtually every hospital, the c-section rate exponentially increased to more than 30%, Fisher explains. Initially the rate might have been higher than necessary because of the inexperience in interpretation by healthcare providers. However, after continued refinement of the interpretation process, the c-section rate remained elevated.
“The only explanation that really can be derived from this currently is that the threat of lawsuits causes physicians to be very quick to perform surgery,” Fisher says. “Unfortunately, neither the death rate nor, more particularly, the cerebral palsy rate has diminished.”
Research has shown that cerebral palsy rates have gone up in full-term infants over the last few years, in spite of all the improvements in obstetrical care and the high rate of c-sections, Fisher notes. One review of the published research concluded that monitoring and emergency c-section does not prevent death or cerebral palsy. Fisher points out that in third-world countries where c-sections rarely happen, those countries have the same rate of cerebral palsy as the United States.
“If The Joint Commission provided legal protection of some type on this issue, I would think that there would be a major reduction in the c-section rate,” Fisher says. “Unnecessary c-sections would not be performed, and likely the rate of cerebral palsy would stay the same.”
The challenge might be in implementing standards without physicians feeling as if you are requiring “cookbook medicine” that obviates their decision making, Fisher says
As for risk managers, Fisher emphasizes that they should understand the need for accurate documentation of the exact reasons for c-section that fit into TJC criteria.
“Establish and document the correct findings to support the c-section that The Joint Commission would recognize as appropriate. Your documentation must meet those criteria very specifically,” Fisher says. “However, until the threat of lawsuit disappears, the clinician may not follow that criteria, especially if they know that there will be a well-versed plaintiff expert who interprets the monitor strip differently than the defendant. Because the Joint Commission criteria are probably not admissible in court as a defense, this means that even if you follow the criteria, you cannot defend yourself with Joint Commission criteria in court.”
Source
- Charles W. Fisher, JD, Principal, Kitch, Detroit. Telephone: (313) 965-7521. Email: [email protected].
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