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Lawsuits Fueling Health Care Crisis

On May 6, most of the obstetricians in Las Vegas adopted a policy of rejecting newly pregnant women as patients, even if the woman was an existing patient.

The doctors of Clark County, Nev., simply cannot afford the necessary malpractice insurance. In Las Vegas, a doctor who delivers fewer than 125 babies a year would pay between $40,000 to $80,000 in insurance. Delivering 125 to 175 babies would raise the premium to over $100,000. The more babies they deliver, the higher their premiums.

Las Vegas is not alone in its sudden shortage of obstetrical care. Abuse of lawsuits is creating an alarming and needless health crisis for women and newborns in the United States. While lawyers pocket huge fees, expectant mothers are encountering more difficulty in finding an obstetrician willing to deliver their babies — or even consult with a midwife on their pregnancies. If women do find a physician, the cost may be prohibitive.

The insurance companies are terrified of lawsuits — and with cause. According to the American College of Obstetricians and Gynecologists (ACOG), the "median medical liability award jumped 43 percent in one year, from $700,000 in 1999, to $1 million in 2000; it has doubled since 1995."

"Neurologically impaired infants" account for 30 percent of claims brought against obstetricians. The average award in such cases is close to $1 million, but a recent award in Philadelphia "reached $100 million." Moreover, the typical ACOG member will be sued 2.53 times during his or her career.

The medical rebellion in Las Vegas came on the same day that ACOG, at a press conference, issued a Red Alert listing nine states "in crisis" — states where the cost of malpractice insurance is causing obstetricians to move elsewhere, severely limit their practices or retire early. Those states are: Florida, Mississippi, Nevada, New Jersey, New York, Pennsylvania, Texas, Washington, and West Virginia.

Crisis is not too strong a word. Look at Florida: In some counties, malpractice premiums can be as high as $209,000. The scarcity of obstetricians became so acute that Florida now allows doctors to "go bare" (practice without liability insurance) in order to give pregnant women a better chance of receiving medical care.

Or consider Mississippi, which is known for high jury awards in medical cases. Mississippi is also known for "forum shopping," by which plaintiffs' attorneys deliberately file their cases in counties known to award high damages — even if the case originates elsewhere.

As a result, most of the cities with populations under 20,000 no longer have doctors who deliver babies. Medical care is even scarcer in rural areas.

Meanwhile, the doctors' fear of lawsuits has had a chilling effect on alternative birthing as well. In California, for example, a 1993 midwifery statute, the Licensed Midwifery Practice Act, included a "supervisory clause" requiring a midwife to be supervised by a physician during home births. However, no corresponding obligation was placed upon physicians to consult with midwives on home births.

Then, the California Medical Board defined the doctor's supervision so as to make him or her responsible for the actions of the midwife. This created a vicarious liability that most doctors wisely refuse to assume. Those who do face a steep increase in insurance premiums.

Midwives can practice "underground," but they run huge risks. Faith Gibson, author of "The Official Plan to Eliminate the Midwife 1899-1999" in Liberty for Women, describes one risk. "Every time a midwife transfers a laboring woman to the hospital and an on-call obstetrician gets notified to come in, he makes a complaint to the Medical Board that she is practicing without a physician supervisor. When the Medical Board holds such a hearing, the price tag to the practitioner for legal fees is $50,000 to $100,000."

Gibson — a practicing midwife and a midwifery activist — believes lawyers stand in the way of practical solutions to the birthing crisis. She wants to establish a no-fault compensatory fund for "all birth attendants" — doctors and midwives — that would pay medical expenses for neurologically damaged babies in a manner similar to a workman's compensation fund.

But Gibson is convinced that "the trial lawyer lobby will never let that get through, as they would lose all the money they get for defending obstetricians against malpractice cases."

Yet some solution must be found. ACOG President-elect Charles B. Hammond has suggested some steps for reform.

"First, we consider insurance market reforms, to answer the question, why are premiums so volatile for doctors?" Hammond said. "Second, we reform our 'medical justice' system: Those tort system and court procedures that lend themselves to lawsuit abuse. Finally, we must be willing to explore alternatives."

A recent Harris Poll found that 76 percent of physicians say that the fear of malpractice lawsuits have hurt their ability to provide quality care. Now, an entire category of doctors is starting to refuse care altogether.

It is not because doctors are indifferent to the needs of pregnant women. My father-in-law was a small-town GP for decades, and his greatest joy was bringing new life into the world. His retirement left pregnant women in the town — and in much of the county — without a doctor willing to deliver babies. He hates for women to be without medical care.

Nevertheless, the advice he now gives to his children and grandchildren: Don't be a doctor. Become a lawyer, instead.

Wendy McElroy is the editor of ifeminists.com. She is the author and editor of many books and articles, including the forthcoming anthology Liberty for Women: Freedom and Feminism in the 21st Century (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.

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