Another jury gets duped

So KevinMD posts about a settlement in a cerebral palsy case, because the obstetrician did not do a C-section. The first comment comes from our old pal – CJD – who as usual resorts to sophistry and avoids data.

Malpractice lawyers are felt to be a major factor in the increase in C-sections in this country. But C-sections also have risks – High infant mortality seen with elective C-section

Rates of Caesarean deliveries have risen steadily in the United States, from 14.6 percent of all first-time births in 1996, to 20.6 percent in 2004, MacDorman’s group notes in the September issue of Birth.

Since the United States began gathering data on C-sections in 1989, MacDorman and her team note, a greater risk of death has been seen among infants born via the procedure, but researchers have generally assumed that this was because these infants were more likely to die from other causes.

To investigate whether the C-section itself might somehow be a factor in infant deaths, the researchers looked at data from more than 5.8 million births to U.S. women between 1998 and 2001. All of the women were at “no indicated risk” for a C-section, meaning the infant was a singleton, full-term, in a head-down position, and no other medical risk factors or delivery complications were indicated on the child’s birth certificate.

MacDorman and her colleagues had previously identified a 49-percent increase in C-section rates between 1996 and 2001 among women in this “no risk” category.

The risk of death in the first 28 days of life was 1.77 per 1,000 live births among women who had C-sections, compared with 0.62 per 1,000 for women who delivered vaginally. Even after analyzing the various causes of infant death, the researchers could find no clear explanation for the difference.

So now the lawyers have the obstetricians coming and going. They can sue for doing a C-section if the infant dies, or they can sue for not doing a C-section if the infant has cerebral palsy.

Medicine requires us to balance risks and benefits. We rarely have a definitive correct answer on how to proceed. (Defense lawyers often like to assert that a reference is “authorative”, but there is no such thing in medicine). Those who sue (and most patients do not) want the world of medicine to be black and white. They assume that we can always make the decision that leads to a perfect result. But often the result is not perfect.

In the case of C-sections and cerebral palsy, do we cause more problems with C-sections or with vaginal births? Both delivery routes have advantages and disadvantages.

I wrote 3 days ago that an obstetrician told me that a “bad baby” = a lawsuit. How many babies and mothers do obstetricians save? Why should they be sued for an unfortunate result?

So (since I know CJD will be reading) I ask how many false settlements should we allow for the chance that the obstetrician erred? How do we balance the family’s angst with the future health care of others?

I do not believe our current malpractice system improves overall health care. Clearly supporters of our tort system are concerned primarily with their clients, and not with subsequent actions.

Thus, I personally find our tort system lacking from a public health perspective. We should develop an evaluation system which penalizes physicians who make serious errors, and compensates patients (or their families) who suffer from those errors. Sounds like Special Health Courts to me!

Excuse me while a put on my virtual armor, preparing for the CJD hyperbolic sophistry.