Is the fear of litigation holding back progress in the prevention of stillbirth in the US?

January 24, 2018
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by Lindsey J. Wimmer, RN, MSN, CPNP, CPLC

I often hear that obstetricians and midwives are hesitant to tell their patients about stillbirth or other potential poor outcomes of a pregnancy.  The biggest reason is that they don’t want to scare anyone.  It may not be helpful, but the underlying motivation is caring and trying to be protective.  There is some irony to me that many of these same providers carry a certain amount of fear with them throughout their entire careers. The risk of being sued is something these health professionals deal with on a daily basis.  The prices of malpractice insurance for obstetrics providers tells us that the risk is real.  Inevitably, it can influence many of the decisions providers make for themselves and for their patients.

I wish I could take this fear away for them because I have never met a health professional who wanted a patient to have a poor outcome.

I actually believe that we would have fewer poor outcomes if providers could make decisions with their patients based on what the situation is, their experience and knowledge, and the family’s wishes.  Legal and financial considerations should not play a major role – especially on the part of the provider.  But we know they do.  

This is not a factor that is as prominent for obstetrics providers in other parts of the world.  In my opinion, it holds back a lot of progress for health care in our country.

Even more frustrating is that the vast majority of parents I encounter who experienced a poor outcome have no interest in suing their provider.  And the ones that do, would feel less so if they felt like their health professionals weren’t acting guilty (by immediately bringing in the risk management team), expressed their sorrow and empathy, and worked to make changes that might prevent the same situation from happening for a future family.  These reactions are usually what they were taught or are taken out of their hands.  Many times, administrators make the decision to bring in risk management – not the provider.  I’ve heard from several physicians that they were told in their training that saying “I’m sorry” is an admission of guilt, so they work hard to avoid those simple human expressions of sympathy.  And many don’t have the power to change the system in ways that could truly lead to prevention even if something is identified.

In some European countries, there is more of an effort to involve families in an evaluation of poor outcomes so everyone can identify opportunities for improvement.  It makes sense that we can learn the most about a situation and what went ‘wrong’ or could be done differently in the future if we have everyone at the table who had a role.  Unfortunately, I don’t see this happening in the United States anytime soon because of the concern about medical malpractice.  This is just one opportunity that we might be missing to improve care.

There is a time and place for holding medical professionals accountable.  But we can’t let it interfere in common sense, human interactions, application of knowledge and skill, and better care.  I would love if we could entrust providers with finding a fair system to monitor themselves without pitting the health professionals against the patients and vice versa.  We are all on the same team and want the same outcome.  But our strategies don’t always work together toward that outcome.

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