Is Liability to Blame for an OB/GYN Shortage

The American College of Obstetricians and Gynecologists has repeatedly expressed concern over the impending shortage of physicians in their specialty [i]. This worry has only been exacerbated by the number of doctors leaving the field recently. Many of these departing practitioners explain that they only plan to drop the obstetrics portion of their practice, since this change could decrease their medical liability insurance to a fraction of that paid by OB/GYNs, who have the second highest premiums of any medical specialty [ii]. OB/GYNs pay high premiums because lawsuits involving patient-plaintiffs who are less than one year of age are more likely to end in payouts. In fact, 22% of payouts greater than $1 million involve obstetrics cases [iii].

Though lawsuits contribute to the rising cost of pregnancy and childbirth in the United States, the main source of increased spending is tests and procedures performed on the pregnant patient [iv]. Indeed, more than sixty-three percent of obstetricians state that they engage in defensive medicine, performing extra steps in patient care with the goal of preventing medical malpractice lawsuits [i]. It is these procedures and the costs they accrue — an estimated 5-9% of total health care costs — that are a major strain on the already overburdened health care system.

Though this addition of cost, stress, and time spent in health care facilities can have detrimental effects on patients and health care spending, physicians don’t find it easy to stop performing these extra tests [iv]. Within the OB/GYN specialty in particular, where the frequency of malpractice lawsuits is so high, double checking diagnoses and treatment plans with more data is routine. While this practice drives up costs, many argue that it is the U.S. medical liability system which is to blame. As University of Chicago Law School professor Richard Epstein notes, “Nobody is as hospitable to potential liability as we are in this country…no other country does that [behaves like the US system], and no other country has the legal fear that [the US] has created” [vii].

The US epidemic of malpractice suits, with more cases and greater payouts than any other country, causes increased financial and other costs to obstetricians, which in turn create a greater burden for patients and insurance companies who fund pregnancy. As a representative for ACOG noted to the House Judiciary Committee in March 2011, “Without reform of America’s broken liability system, women will increasingly find that they cannot get the prenatal and obstetric care they need” [i]. In short, many obstetricians link a faulty liability system to increased costs and a limited supply of working OB/GYN physicians.

Opponents of the US health system cite European and Canadian models as alternatives that might decrease the cost and frequency of US malpractice suits. For example, many foreign health care systems have caps on the amount of pain and suffering damages that may be paid out. This cap is usually around $400,000, which is the average amount for US payouts—it can be much higher [vii]. A statement from the Congressional Budget Office suggests that capping the damages that may be paid and decreasing the statute of limitations, or the time by which a discovery of an injury must be made in order to sue, may decrease the number of suits, the costs of physicians’ insurance premiums, and, in turn, the rates they charge patients [ix]. Some suggest we implement a policy common in European systems of having the losing party in the suit pay the legal fees of the victors, though this could have a chilling effect on the ability of individual patients to sue large and well-funded entities like insurers. Other options include having decisions made by a panel of experts or just a judge rather than a jury, which may decrease the “frivolous” cases more often seen in the US [vii]. These options are among the many that may help decrease costs and improve the availability and affordability of obstetric care.

Jennifer Norris is a full-time student in the Einstein-Cardozo Master of Science in Bioethics program (M.B.E.). In 2012, she graduated with a B.S. in Exercise Biology from UC Davis. Her background as an intern in athletic training and emergency medical research inspired her pursuit of bioethics. She graduates from the M.B.E. program this summer and is applying to osteopathic medical school.

[i] Waldman, Robert N., MD. “Medical Liability a Chronic Crisis.” ACOG Today 55.2 (2011): 2.
[ii] Krupa, Carolyne. “Liability Premium Relief Good for Doctors, Unsettling for Insurers.”American Medical News. N.p., 22 Oct. 2012.
[iii] Desmon, Stephanie. “‘Catastrophic’ Malpractice Payouts Add Little To Health Care’s Rising Costs – 05/01/2013.” Johns Hopkins Medicine
[iv] Rosenthal, Elisabeth. “American Way of Birth, Costliest in the World” NYT Health. New York Times, 30 June 2013
[v] Dove, James T., MD, John E. Brush, Jr, MD, Richard A. Chazal, MD, and William J. Oetgen, MD, MBA. “Medical Professional Liability and Health Care System Reform” Journal of the American College of Cardiology 55 (2010): 2801-803.
[vi] Hermer, Laura D., and Howard Brody. “Defensive Medicine, Cost Containment, and Reform.” Journal of General Internal Medicine 25.5 (2010): 470-73
[vii] Studdert, David M., Michelle M. Mello, Atul A. Gawande, Tejal K. Gandhi, Allen Kachalia, Catherine Yoon, Ann Louise Puopolo, and Troyen A. Brennan. “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation.” New England Journal of Medicine 354.19 (2006): 2024-033
[viii] Sorrel, Amy Lynn. “Medical Liability: A World of Difference.” American Medical News, 3 May 2010
[ix] Elmendorf, Douglas W., and Congressional Budget Office. “Analysis of the Effects of Proposals to Limit Costs Related to Medical Malpractice.” Letter to Honorable Orrin G. Hatch. 9 Oct. 2009. MS. Washington, DC

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