Home > Obstetrics, Rants and Raves > Micro Tort-Reform: A potential solution to the VBAC Liability Issue

Micro Tort-Reform: A potential solution to the VBAC Liability Issue

While the NIH Conference on VBAC behind us, the blogosphere continues active discussion of this important issue.  I’ve been involved in this discussion a bit over at Science and Sensibility.

Here’s the message I am getting from a lot of folks strongly in favor of VBAC rights and availability.

The choice to VBAC is an informed refusal of a intervention.  There should be no “right” required to have it.  Hospitals should not be allowed to refuse VBAC attempts, as this is the same as requiring a woman to have an elective surgery.

I hear a general feeling that the risk of uterine rupture is overstated, as is the likelihood of a severe adverse outcome if a rupture occurs.

I hear a general feeling that the short and long term risks of repeat cesarean deliveries are overstated.

I think these are good messages.  I agree with women should be be free to refuse repeat cesarean delivery, even in hospitals that do not have 24 hour anesthesia access and 24 hour OB coverage.  As long as this refusal is informed, it should be a woman’s right.  I also agree that the risks of VBAC are overstated by many, and the risks of repeat cesarean are understated by many.

The problem is liability.

Hospitals where uterine ruptures have occurred have been hit with massive lawsuits, many of which were successful.  Obstetricians have also been successful sued for uterine ruptures, leading to massive settlements or judgements.  This has led hospital and physician medical liability carriers to increase rates substantially to hospitals and doctors who attend/provide VBACs, and in some cases refuse to insure them entirely.  In many cases this has made it financially difficult to make VBACs available.

So we can all argue that there is no such thing as “making a VBAC available”, as it is the natural state of affairs in a woman with a prior cesarean.   After all, if you do nothing she will go into labor and likely will VBAC.   This is a very logical and rational argument.  The problem is that liability is not rational.  Its based predominantly on completely irrational ideas that every bad outcome is somebody’s fault and that compensation must somehow be made.

The discussion at NIH is very rational, as are most of the arguments being made for VBAC availability.  The problem is that our history of lawsuits for uterine ruptures is completely irrational, as is the current situation with liability insurers.  The sad but simple reality is that many doctors and hospitals can’t provide VBAC because their liability carriers refuse to cover them if they do them, and without liability coverage medicine cannot be practiced in this country.  This is irrational, but it is real.
On one side we have lots of very rational arguments we can all get around, and on the other we have a completely irrational but very real issue that is the actual cause of the problem.

And so, I present a viable solution.

I propose a nationally accepted consent form for VBAC and repeat cesarean delivery, vetted by as many people as would want to be involved.  This VBAC consent form would discuss the true risks of VBAC to the mother and fetus, and the true risks of repeat cesarean delivery.  It would also discuss what we would consider to be adequate hospital coverage system to ensure optimal action in case of a uterine rupture, and whether or not the proposed delivery environment is able to meet those standards.  It would explain that not meeting these standards may decrease the efficiency of a response to a uterine  rupture.  It does not require that these standards are met, but does explain that failing to meet this standards may, in rare cases, contribute to an adverse outcome.  It will also explain that even if these standards are met, no guarantees can be made about outcome, that uterine rupture is an unpredictable event, and that uterine rupture can lead to injury or death, fetal or maternal.

Most importantly, this consent form would be a federal document, and would include a statement something like this:

“I understand that by signing this consent form I release any healthcare entity from any liability regarding a uterine rupture, if such an event occurred.  I understand that this is completely irrevocable in this pregnancy if I continue to choose vaginal delivery.  I sign this of my own free will.  I understand that I can choose an elective repeat cesarean at any time”

Such a release would require a federal law that made the release bulletproof, as normally people cannot completely release any entity from liability.  Such a law would probably be called unconstitutional by somebody, so that would have to be fought off. There is precent for such a law.  Vaccine manufacturers are federally protected from lawsuits from adverse outcomes from vaccines, under a law that created a separate liability pool for that specific issue.

Here are the steps that would be required.

1. Draft a consent form based on the best available evidence
2. Open the consent form to comments, and make edits as necessary
3. Draft a bill that would release parties from liability when this consent form is signed.
4. Gain interest of a few senators that would be interested in bringing this bill to the floor.
5. Raise up enough public support for this to actually make it law.
6. Fight off the constitutional battles that would ensue.

I believe that if such a thing could become law, VBAC availability would no longer be a problem.  Without the risk of a career destroying or hospital injuring lawsuits in the rare case of uterine rupture, there would be no reason to limit VBAC access.  The problem would be solved.

A lot of folks I have had discussions with are saying that that women understand the risks of VBAC and are willing to take that very small risk of uterine rupture and potential fetal harm.   The question then is, understanding the current liability situation, would they would be willing to sign away their right to sue in the event of a uterine rupture?  Figuratively, would they put their money where there mouth is?  Clearly this strategy would lead to hospitals refusing VBACs unless the federal consent were signed, and would put an end to uterine rupture lawsuits in general.

There are a number of barriers to generalized tort reform.  The biggest is the huge lobbying power of trial attorneys, and the sad fact that most of my political party is lawyers.  Perhaps what we need is specific issues we can draw attention to, like VBAC.  Perhaps we can have “micro tort reform” on this one issue.

I await public comment on this idea.  It would be a huge undertaking, but I think it would work.

About these ads
  1. March 11, 2010 at 1:19 pm

    We have all of our VBAC’ers sign a consent for VBAC and repeat C-section at the time of admission. We discuss things you mentioned like risk of rupture, risk of maternal or fetal death, and increased difficulty with repeat sections. Not sure it explicitly says “you can’t sue,” but patients are made aware of risks on both ends.

  2. March 11, 2010 at 1:24 pm

    This is similar to what is done in most hospitals. It is informed consent, but does not release the hospital or physician from liability. At present, this does not seem to be adequate to defend a fetal death from uterine rupture, and does not solve the problem hospitals are in – insurers refusing to cover VBAC labors.

  3. March 11, 2010 at 1:56 pm

    Would this shield providers from liability for UR in the case of induced or augmented labor? I’m not sure that would be so wise.

  4. Sarah
    March 11, 2010 at 2:32 pm

    Appreciate your post. I’ve spent te last two doctor appointments mid panic attack hving to be lectured about liability and health care reform instead of beig informed about my pregnancy and risks with possible complications. General public like myself needed to hear the studies and lack of presented at NIH’s VBAC consensus. I also agree that the problems ahead with making a safer birthing enviornment will now be able to swing toward liability issues that stands in the way. I’ve been told by providers that I can either labor at home alone to VBAC (unassisted) or choose between elect cesarean or sometimes continuous monitored trial of labor. It is not because of mine or my fetus’ safety that some have chosen to not support my vbac (they were willing to allow me to go it alone). Instead they admited they are scared of legal issues and hospital policy.

  5. March 11, 2010 at 2:56 pm

    in my experience, what is keeping hospitals and providers from attending VBAC is not fear of malpractice, nor higher premiums, nor insurers refusing to write for coverage. What is keeping providers from attending VBACs is the hospital mandate, based on ACOG’s policy of immediately available physicians, that led hospitals to require those attending VBACs to sit on the labor floor the entire time a VBAC is in labor. Some hospitals only require that the OB stay in house; others require both OB and anesthesia to be in house. Not only are the doctors required to be in-house, they are not in any way financially compensated for this.

    All the docs in my community (save my DH) stopped doing VBACs when the hospital started requiring the OBs to sit on the labor floor. At first, we thought a doc could be in his/her office in the hospital while a VBAC was in labor. But then the hospital clarified that an OB could not leave the labor floor, not even to go to the cafeteria or ER, while a VBAC was in labor. Further, an OB could not perform any surgeries in the main OR while a VBAC was in house.

    The requirement that physicians be immediately available is preventing many more providers from attending VBACs than any malpractice issue. Several of the local groups have sovereign immunity and basically can’t be sued – are they attending VBACs? Nope – don’t want to sit in house while the VBAC labors.

    And what you are proposing is not tort reform. Tort reform is things like requiring mediation, compensation funds (such as NICA in FL), caps on non-economic damages, vetting of expert witnesses.

    What you are proposing is unethical and would never withstand the supreme court. You cannot ask a person to give up their rights of recourse. What if a woman has a rupture that is noted by the nurse, but the physician takes 40 minutes to arrive? She has no recourse when her baby dies as a result?

    Back to the drawing board. We need to work on ACOG to rescind the “immediately available” recommendation for VBACs and put some sanity back into OB care. Urgent complications can happen in any labor – singling out VBAC for excess physician vigilance is not only unnecessarily, but the primary reason for the so-called VBAC bans.

    • April 9, 2010 at 9:52 am

      I think you are absolutely right on all counts Samantha! “Liability” is being used as a scapegoat by many care providers because they think it will elicit more sympathy than “I don’t do VBAC because I would be required to stay in the LDR the whole time you are in labor.”

      I agree that it is ridiculous that the OB’s can’t even go to the cafeteria, or that being in their office just a few minutes away from the LDR is somehow wrong.

      And yes, banning women from suing is wrong. There needs to be a balance. Women should not be able to sue for complications that are reasonably expected to possibly happen–the “yes, my Dr told me that rupture was possible, but I didn’t believe it would really happen to me!” situation…but they should be able to sue for malpractice such as you describe.

  6. March 11, 2010 at 4:13 pm

    My first reaction to your proposed informed consent document? It’s not fair that women would have to sign away the ability to sue–to do something that they don’t have to for any other possible childbirth-related scenario. But then I thought–well, yes, it’s not fair, but it’s pragmatic. Yes, I would love a world where fairness and rationality won every time. But they don’t.

    I wonder, though, if this would really overcome many physicians’ reluctance to attend VBACs. From reading through years of archives over at the OB/GYN-list archives, I get the feeling that those physicians who don’t value vaginal birth much (if at all) wouldn’t attend or encourage VBACs even if they were guaranteed legal immunity.

  7. Heather, RN, MN
    March 11, 2010 at 5:06 pm

    Here here Samantha! Why is it that in obstetrics we are always looking for zebras and never horses? Guilty until proven innocent?!?! Why does this make sense? I’ve worked as an L&B nurse for a number of years and I’ve never understood why we just assume that every woman who VBAC’s is going to rupture her uterus?

    I think your consent forms need to include “I understand that my doctor will not do anything to increase the likelihood of my uterus rupturing, i.e. inducing my labor without sound medical evidence that myself or my fetus would be harmed if said induction is not done (hypertension with side effects such as proteinuria, headache etc – not just one high reading in the office); my doctor will not augment my labor with AROM or oxytocin just because he has a meeting or a dinner date or tee time. I understand that my labor will be allowed to progress naturally, even if it does appear to be “slow” according to the age old Freidman curve, whether or not I have an epidural, so long as my fetus is in good health. I understand that I will not be encouraged to push until I feel the urge to do so. Even though the hospital may have a policy of continuous fetal monitoring, they will provide telemetry so that I can walk and be active in labor….or hey, maybe they’d even consider taking the monitor off for an hour if the tracing has been reassuring or normal”.

    I could go on…..

    but i won’t

    • March 12, 2010 at 5:21 pm

      But Heather, please do go on whenever given the chance. We need more voices from inside the walls screaming that there is something wrong with this perspective of birth. We’re so focused on the “what ifs” that we forget to stop looking for illness and instead see the vast normality of birth.

  8. March 11, 2010 at 5:13 pm

    I agree that a nationally agreed-upon VBAC consent would be good but I do think it needs to be created by stakeholders including consumers, in common language, and not given by the OB/care provider. I think the same kind of consent process could be done during pregnancy and again, at the hospital, birthing center or home once laboring has commenced.
    Do I think that consent process should include no recourse to sue under any circumstances? No. The delineation there of what is risk inherent to vaginal birth should be stated in honest terms as well.

    i also think that we need more “bad baby” funds to take some of the slack of these cases. Every person who works has to pay into unemployment comp “in case” (usually done through the employers) so is it unreasonable to consider it in these circumstances?

  9. Rebecca S
    March 11, 2010 at 5:51 pm

    Thanks for opening up this dialogue. It is important that we take the NIH’s charge to work together on liability seriously.

    I’d like to know how this consent form idea would interact with Amy Romano’s latest post (my apologies if you’ve commented over there already, hard to keep up this week!) about a rupture being an intermediate event. If a rupture happens, it could still be mismanaged or misdiagnosed (different from being unpredicted) leading to harm that could have been prevented with appropriate intervention. Isn’t that the whole point of monitoring a VBAC in hospital?

  10. March 11, 2010 at 6:12 pm

    “Urgent complications can happen in any labor – singling out VBAC for excess physician vigilance is not only unnecessarily, but the primary reason for the so-called VBAC bans.”

    This is what I don’t get. Why are we singling out UR with c-sections. Birth in general can have serious life threatening complications. If VBAC requires constant in house supervision, then shouldn’t all births? If ACOG is suggesting that VBAC needs in house anesthesia and ob’s for VBAC, than this should be the standard for all births.

    I didn’t watch all of the conference, but one question I did hear intrigued me. Is there any evidence that having constant ob/anesthesia there really decreasing infant/maternal death rates? And if so, is there evidence that having it there for all births would also decrease death rates? Then we have to ask ourselves, if there is evidence that death rates are decreased in these instances, then shouldn’t we be providing that for all births? And if there is no evidence to show that it is in fact decreasing infant/maternal mortality, than why are we requiring it?

    Also, I’m not sure that making a woman give up her rights to sue would go over well with a lot of people.

  11. Gwen
    March 11, 2010 at 11:41 pm

    “The problem is that our history of lawsuits for uterine ruptures is completely irrational, as is the current situation with liability insurers.”

    Why? There are so many people who feel strongly against C-sections, so if they’re really so bad where are all the lawsuits from the women who have suffered irreparable damage or lost their babies because of an unnecessary C-section?

  12. March 12, 2010 at 3:22 am

    Patients have a right to refuse c-section. Do physicians and midwives have the right to refuse to attend a VBAC labor? Does EMTALA infringe on the provider’s right? Suppose a timely transfer cannot be accomplished in the event the EMTALA physician refuses to attend a VBAC labor?

    Thanks for the post on this topic; I tend to see Ms. McCormick’s point-of-view.

  13. Chanda
    March 12, 2010 at 4:27 am

    Great discussion here but the other thing that concerns me is we are only discussing this “informed consent” regarding VBACs– what I see out there is that women are not being told the risks of repeat c-sections– both short and long-term. I think that these consents should be balanced so that women are really able to see risk and benefit to both and then can make a decision that they are comfortable with.

    As for tort reform– definitely needed but I believe it needs to go hand in hand with repairing the relationship between caregiver and mother.

    We definitely need to find a way to stop allowing lawsuits and insurance affect real care. We need to find a way to remind people that a good outcome is not a guarantee in life.

  14. March 12, 2010 at 5:58 am

    My initial thoughts:

    1. I agree that we have rational arguments for much broader access to VBAC and absolute right to refuse surgery without forfeiting our right to healthcare (e.g., without having to resort to an unattended birth in order to exercise that right.) (no surprise there!)
    2. I also agree that the legal environment is not rational at all.
    3. I also think, as other commenters have said, that we need to take seriously the panel’s recommendation to focus on liability reform. Many advocates, myself definitely included, do not know the ins and outs of malpractice law, so this will be an uncomfortable area for us to tread, but necessary.
    4. I think the ACOG “immediately available” clause and the malpractice problem go hand in hand, and need to be resolved together. ACOG is protecting its members by being conservative and saying that the standard of care is immediately available, because any other standard for resource availability would allow too much legal gray area. And hospitals interpret that as “everyone in-house and an open OR” because any other interpretation of “immediately available” presumably makes them more vulnerable to law suits, and every hospital has a risk management office whose job is specifically to avoid lawsuits.
    5. I think (although I’m new to thinking about this stuff, so I certainly am open to other persuasive arguments) that I would be comfortable with a plan like this IF there was a safeguard mechanism to make sure families could get financial assistance when a bad outcome occurs AND a mechanism for women to make a complaint when actual neglectful or unsafe care is given (or for other professionals to report these) AND a mechanism to make sure that such complaints get handled seriously (investigated fully and the providers could face penalties including losing license to practice).

    One piece that I can’t decide how I feel about – although I understand it reflects the current irrational focus of the liability system – why do only those women who proceed with a “TOL” lose their ability to sue?

  15. Rebecca S
    March 12, 2010 at 6:38 am

    Agree 100% with Amy and Rixa. It is discriminatory to demand that only pregnant women sign away their right to seek redress for actual harm, in order to exercise their right to informed consent/refusal.

    • March 12, 2010 at 6:53 am

      >> Agree 100% with Amy and Rixa. It is discriminatory to demand that only pregnant women sign away their right to seek redress for actual harm, in order to exercise their right to informed consent/refusal.

      It isn’t fair and it may be discriminatory, but it might actually fix the problem. Liability isn’t a rational business.

      The entire idea obviously has a lot of feasibility issues, but I bring it up as an proposal that would actually reach the goal folks are looking for.

      The response I am getting is exactly what I expected, which is that it is unfair to ask women to give up the right to sue. At the same time women say they understand the risks and feel they have the right to take that risk, but want to be able to sue if the terrible outcome happens.

      So women are willing to take the risk to their babies of doing VBAC (small risk admitedly) but want somebody else to pay them off if that event happens, despite their prospective acceptance of that risk. That’s not fair either.

      But again I’m being rational, and liability is not rational.

      PS I edited the language of this comment shortly after posting it.

  16. March 12, 2010 at 6:44 am

    Thank you all for the great discussion. I agree that this plan is incredibly rough, and contains a very radical idea of giving up the ability to seek legal recourse. On one hand I realize that this is virtually impossible and possibly unethical. On the other hand I see it as a rational way to deal with a completely irrational situation. I brought it up because a lot of folks claim that they understand the risks of VBAC and want to do it anyway (which is fine) – but will they actually put their beliefs on the line?

    The underlying reason for liability indemnity clause is that that’s ultimately what makes the plan different than what we are already doing. People already sign detailed consent forms for VBAC, and though we can argue about exactly what should be on that form, these forms have not made any impact on the liability a hospital or physician carries when they are involved in VBACs. An agreed upon consent form would be nice in and of itself, but I don’t think it would have any impact on liability.

    The idea I am hearing that I like the most is the idea of a “bad baby fund”. I have always believed that our liability system has been too black and white. Ie a baby is injured or dies, and the system only allows complete condemnation or complete vindication. Neither of these outcomes reflect what really happens, which is that sometimes bad outcomes happen completely out of the control of those involved, and sometimes bad outcomes happen with contribution from those involved. It would make much more sense for everyone to pay into a pool that would pay out a standardized amount of money for certain events, similar to what is done in the vaccine risk pool.

    This of course would be unsatisfactory to many people, most importantly the lawyers who would hate the way the idea would cut them out of the lucrative plaintiff’s attorney business.

    I also agree that there should be a mechanism to investigate bad outcomes, and some mechanism to re-enter the standard legal system if dramatic negligence can be demonstrated. I’m not looking for a way to protect people from gross malpractice, just a way to protect doctors and hospitals from being destroyed by the rare and unpreventable uterine ruptures that do occur in VBAC.

    Many commenters have made great points about things that need to change that I agree with:

    1) The immediately available language should change, or at least be more clear. This language was created to decrease liability, but ultimately it hurt availability.

    2) The practical problems with having to stay in house 100% of the time during a VBAC does create a barrier to offering this service (see my 10 thoughts on VBAC post). Realistically this can only be dealt with through group practice environements or hospitalist coverage, as it is financially non-feasible for a solo or small practice doctor to shut down their high overhead practice for 12-36 hours to attend a single delivery.

    3) “We need to find a way to remind people that a good outcome is not a guarantee in life.” Absolutely. Sadly there are thousands of billboards and commercials every day that promote an opposite message.

    Just to address one other point

    >> There are so many people who feel strongly against C-sections, so if they’re really so bad where are all the lawsuits from the women who have suffered irreparable damage or lost their babies because of an unnecessary C-section?

    Do you really think there are so many? I think there are actually very few, but that they are a very vocal minority active on the internet. I also think there are very few women who have suffered irreparable damage from cesareans in comparison to the million or so cesareans that happen each year, and very few to maybe even none that have lost their babies due to a cesarean. That being said, women suffering complications of cesarean do bring lawsuits at times, and if their case is good and can be proven they can win. However, I suspect that settlements for wound infections, bowel injuries, and unanticipated hysterectomies are typically orders of magnitude smaller than for unanticipated dead or injured infants.

    Another point:

    The definition of negligence is this:
    1. there was a duty to act
    2. the standard of care was breached
    3. the injury sustained can be reasonably attributed to the breach in the standard of care.

    If we are being rational, we would say that this definition alone should protect hospitals and doctors from unjustified lawsuits. For example, if a doctor is reasonably available and makes it to the hospital 20 minutes after being called, does a required urgent cesarean delivery, and the baby is still injured, lawyers may try to argue that the standard of care was not met. This is not rational, but it is real. On the other hand I’ve had plaintiff’s attorneys tell me that they have enough cases of legitimate malpractice that they wouldn’t bother to bring a suit for something so grey, as they are financially out if they pursue a case they can’t win. Like physicians, I think lawyers vary. Some will only take a really justified case, and others will take a shot on a less justified one if they think they can get a settlement. Not being a lawyer, I’m speculating a bit.

    >> I understand that my labor will be allowed to progress naturally, even if it does appear to be “slow” according to the age old Freidman curve, whether or not I have an epidural, so long as my fetus is in good health. I understand that I will not be encouraged to push until I feel the urge to do so.

    I don’t think you can or should legislate individual practice patterns, but I certainly would language that would promote women’s autonomy to accept or decline interventions in labor. I think that already exists, but isn’t always respected as much as it should be.

    Thanks for all the discussion!

    • Bernadette
      March 13, 2010 at 3:48 am

      Hello, Yes, I respectfully have to disagree – I think there are “many” women who are against c-sections. Perhaps you don’t hear of them all because they no longer have reason to visit an OB. Have you all seen this study? From July 2009. Very sad.

      A study in the British Journal of Obstetrics and Gynaecology has found that almost half of all women who have a caesarean section birth for their first child, don’t have any more children. Of these, one in five have chosen not to have more children because they are too traumatized by the surgery and one in three are physically unable to because of caesarean-caused infertility problems.

      Read more at Suite101: One in Three Women Infertile After Caesarean: Even More are Too Traumatized to Give Birth Again http://infertility.suite101.com/article.cfm/one_in_three_women_infertile_after_caesarean#ixzz0i4GgG0mt

      • March 13, 2010 at 3:50 pm

        We can agree to disagree on a lot of that. Your study doesn’t mean anything unless it compares to women who didn’t have a cesarean for the first child, which it doesn’t. Many people have one child cesarean or not. I am also unaware of (meaning I do not believe exists) data to suggest that 1 in 3 women have infertility problems related to cesarean delivery. Having done many hundreds maybe even a thousand cesareans, I am unaware of even one patient that demonstrated secondary infertility after the cesarean. So I doubt that data very much.

        I’d have to read that paper carefully, which I haven’t – but I will. That said, there are zillion papers that are methodoligically poor, and given the incredible difference between that outcome and the perceived reality, I’m very skeptical of it. But I’ll read it.

    • Sam
      March 13, 2010 at 5:27 pm

      Here are some studies that discuss infertility after a cesarean:

      -Bhattacharya, S., Porter, M., Harrild, K., Naji, A., Mollison, J., van Teijlingen, E., et al. (2006). Absence of conception after caesarean section: Voluntary or involuntary? BJOG, 113(3), 268-275.

      Childbirth Connection. (2004). Harms of cesarean versus vaginal birth: A systematic review. Retrieved 4/17/2004, from http://childbirthconnection.org/article.asp?ck=10271

      Mollison, J., Porter, M., Campbell, D., & Bhattacharya, S. (2005). Primary mode of delivery and subsequent pregnancy. BJOG, 112(8), 1061-1065.

      Saisto, T., Ylikorkala, O., & Halmesmaki, E. (1999). Factors associated with fear of delivery in second pregnancies. Obstet Gynecol, 94(5 Pt 1), 679-682.

      Tollanes, M. C., Melve, K. K., Irgens, L. M., & Skjaerven, R. (2007). Reduced fertility after cesarean delivery: A maternal choice. Obstet Gynecol, 110(6), 1256-1263.

      Tower, C. L., Strachan, B. K., & Baker, P. N. (2000). Long-term implications of caesarean section. J Obstet Gynaecol, 20(4), 365-367.

      Smith, G. C., Wood, A. M., Pell, J. P., & Dobbie, R. (2006). First cesarean birth and subsequent fertility. Fertil Steril, 85(1), 90-95.

  17. March 12, 2010 at 6:49 am

    >> From reading through years of archives over at the OB/GYN-list archives, I get the feeling that those physicians who don’t value vaginal birth much (if at all) wouldn’t attend or encourage VBACs even if they were guaranteed legal immunity.

    I think this is correct for a portion of obstetricians.

  18. Chanda
    March 12, 2010 at 8:16 am

    “are all the lawsuits from the women who have suffered irreparable damage or lost their babies because of an unnecessary C-section”

    To respond– Many of these women who have suffered from uncessary c-sections do so in much quieter ways…. PTSD, decisions to not have more children, problems with self-worth, inability to breastfeed. For those who have more “medical” and “physical” issues– I’m fairly sure that most people are told that it would have been much worse with a vaginal birth and this is the best they could have hoped for and it’s a much harder case to litigate….

    Remember many who have received unecessary c-sections aren’t aware immediately or even for quite sometime afterwards that their c-sections weren’t necessary and they are told over and over that it doesn’t matter since everything is “OK” now…

  19. March 12, 2010 at 8:25 am

    I like the idea of a “bad baby fund”, but I have heard recently in the news about someone questioning the legality of the vaccination program. I’m not sure how it will turn out, but that would put a damper on that idea if it was deemed unconstitutional.

    I think it would also make sense to have a doctor just working in the hospital (sort of like the hospitalist idea). Not sure about the cost of that though or whether that would really be necessary to improve outcomes.

  20. Rebecca S
    March 12, 2010 at 8:29 am

    As I understand it, “bad baby” funds have had no impact on c/s rates, birth injury lawsuits, or for that matter liability insurance rates in states where they exist, eg Virginia.

    Dr. F, what do you think about my first question regarding how your form will address the difference between a predictable bad outcome and actual negligence?

    • March 14, 2010 at 12:40 pm

      >> what do you think about my first question regarding how your form will address the difference between a predictable bad outcome and actual negligence?

      Good question that I don’t have a good answer for. The problem we have is that the legal system has decided that a fetal death after uterine rupture is a winable case even in the absence of negligence (based on informed consent alone). The argument made retrospectively is that nobody would go forward understanding the baby could die. Perhaps irrational, but may work in front of 12 lay jurors.

      I argue that the problem is that a uterine rupture and fetal death is not a predictable bad outcome for any individual. Its predictable if you VBAC 1000 women, but completely unpredictable for each individual woman. It is that uncertaintly that is difficult to deal with, and in many cases leads to litigation. One problem is that a different decision retrospectively would have led to a different outcome, on those grounds cases can be decided at times, even if that different path was not appropriate prospectively.

      I’m not a lawyer, but I think if one were going to protect a physician from suits from a certain outcome, one would have to protect them from negligence suits. Almost all malpractice suits are claims of negligence, so to protect someone from a suit “except in cases of negligence” would seem to me to be no protection at all.

      One could easily look at this and say ‘But the current legal system protects a physician when bad outcomes happen in the absence of negligence’, something that was pointed out by one of the JD commenters. I think the problem is that this is only partially so, and that in many cases negligence is quite subjective.

      • June 25, 2010 at 6:36 pm

        This part is easy. The consent could relieve physicians of liability except in cases of gross negligence (an actual legal standard separate from ordinary negligence) or willful misconduct. This is how charitable immunity statutes are written to protect physicians from liability when they work in free clinics. They can’t be sued for malpractice, except in cases of gross negligence or willful misconduct. And that would be the only logical (and fair) way to write the consent form – if the doc shows up drunk or something, the woman shouldn’t be left with no recourse just because she wanted a VBAC.

        I do appreciate your solution. What makes me angry is the thought that there would need to be a federal law allowing women not to have surgery. That is so backwards.

        Too many “choices” – or what SHOULD BE choices – when it comes to birth options are dictated by laws, hospital policies, unfounded medical practices… and the backlash is coming. You’re talking about women’s bodies, one of the most important events of their lives, and their children. Women need to be brought back into the decision-making process. It’s so insulting this attitude that women cannot educate themselves adequately about the risks and benefits of obstetrical interventions. Because no woman I know wants to die during childbirth or kill their child. And yet there is this overwhelming attitude in the OB community that women are not capable of giving informed consent, so “unsafe” options just need to be removed from their options. And honestly, I think sometimes OB blame “liability” but the decisions they are making are more out of convenience and/or a patronizing attitude toward women. I am not generally a feminist, not do I usually feel like I’m treated differently because I’m a woman. Except when I was in labor. My OB cut an episiotomy not only without my consent, but without even telling me that he was going to. Under what other circumstances would a physician cut into an alert, competent adult without permission or explanation? None.

      • June 26, 2010 at 3:01 am

        Thanks for the deep thought and commentary.

        >> It’s so insulting this attitude that women cannot educate themselves adequately about the risks and benefits of obstetrical interventions.

        The problem is not that women cannot educate themselves about the risks and benefits of interventions. The problem has been that there have been cases where babies have died after VBACs, done with full written and verbal consent, where the patient successfully argued in court that she really didn’t understand that the baby could die. This, even though the written consent clearly spells it out. A such, a formal written consent with legal backing would be useful, and in my opinion does not imply that women are incapable of understanding anything. What it implies is that the legal system is incapable of protecting physicians from lawsuits stemming from rare, unpredictable, and unavoidable complications.

  21. March 12, 2010 at 8:42 am

    Another thing that was brought up in the conference was something along the lines of having “I’m sorry” programs. I’m not sure what they all entails, but this particular person speaking says they have decreased lawsuits. To me this says that we are not just dealing with someone being mad about a certain outcome, but how that person was treated at the time of the outcome. Perhaps looking more at how women perceive their experience would also help to decrease lawsuits.

  22. Rebecca S
    March 12, 2010 at 9:48 am

    Yes, that is a good point Rachel. I’m sorry programs do show some promise. The problem is that in in some states, an I’m sorry can be taken and used against a physician as evidence of guilt/responsibility in a lawsuit. This could be changed by fixing rules of evidence.

    • March 12, 2010 at 11:06 am

      The “I’m Sorry” programs are set up specifically to get around that (i.e. the apologies are inadmissible to prove fault).

      • March 12, 2010 at 12:11 pm

        I think it depends state to state. In some states it is admissible.

  23. March 12, 2010 at 11:04 am

    “I brought it up because a lot of folks claim that they understand the risks of VBAC and want to do it anyway (which is fine) – but will they actually put their beliefs on the line?”

    Nick, I think I was with you til that point. I like the idea of no-fault compensation funds for birth injuries, I like the idea that doctors who engage in a meaningful informed consent dialog with their patients should be able to practice non-negligently without having to worry about a lawsuit for the occurrence of a harm that is a foreseeable risk of VBAC that has been explained and voluntarily undertaken by the woman. But you’re making it sound as though women aren’t already putting their beliefs (and lives, and fetuses, and future fertility) on the line by choosing to have a VBAC – or any labor/delivery, if you get down to it. I’m unconvinced that discrimination is the answer to this problem.

    Even if malpractice liability is irrational (and I’m not sure that’s the case across the board), there is another thing that is irrational: malpractice fears. I am sympathetic to the fact that there is a real risk of being sued, losing a practice, etc. This is a VERY big deal. However, I have yet to see data to support the idea that all, or even most, of these cases are ruling-on-outcome cases where there wasn’t any malpractice, or that a significant portion even have to do with VBAC. I certainly haven’t seen data to suggest that the fears reasonably justify the pressure that women report (including taking unethical actions like threatening court orders). There are a lot of irrational fears in the world, but it is the person with the irrational fear who bears the burden of allaying it, not everyone else. Some of these discussions sound suspiciously like OBs are holding VBAC “hostage”: sign away your rights, and you’ll get what you want. The idea is less “radical” and more “half-baked.”

    I see a lot of OBs with deep fear of the plaintiff’s bar, and trying to set up a “it’s us vs. them against these scummy lawyers” dialog with women. I think, and I am certain you realize, that the conversation is a lot more nuanced than that. Every malpractice attorney I have talked to is convinced that they are on the side of the angels, trying to get compensation for injured people stuck with a lifetime of medical bills by negligent doctors. Every OB I’ve talked to feels equally virtuous: they just want healthy moms and healthy babies and to keep their practice. I’m convinced that you’re a “good guy” in this who really wants to see greater VBAC access. Just like every OB isn’t just inducing willy-nilly to make it to tee-off, neither is every JD railing against VBAC and offering to sue over every UR. In a way, ACOG sealed its own fate by creating a set of guidelines in the 2004 Practice Bulletin, because they’re locked in to something that was never intended to be a hard line. Maybe it would be worth trying to have a conversation with each other to figure out what it would take to dig out from the trenches here instead of putting all the onus on women.

  24. March 12, 2010 at 12:00 pm

    Lots of good discussion – thanks!

    Courtroom Mama – I think you are right that there is some kernel of negligence in most lawsuits. Its very subjective after all. I do accept that lawyers are not scumbags and do have a different perspective that makes sense to them. However, I do not accept the basic premise that everytime something bad happens 1) it is somebody’s fault and 2) someone should pay, and yet that is exactly what trial attorneys promote. There are definitely cases of malpractice out there, and typically lawyers wouldn’t take a case that has no negligence, or at least something they can try to prove.

    I agree that malpractice fears are mostly irrational, but I see it around me every day changing people’s practice. Irrational or not it is real. Malpractice lawsuits hang like a Sword of Damocles over every obstetrician, and that is a big pressure to practice under. Personally I just try to do my best every day and don’t do anything “extra”, but some people feel that there are additional things that can be done to decrease the likelihood of litigation. They may be right and I may be naive. I have never been sued fortunately.

    >> I have yet to see data to support the idea that all, or even most, of these cases are ruling-on-outcome cases where there wasn’t any malpractice

    Oh I think are definitely some of these cases. Not all of them, or even the majority of them, but some of them.

    >> But you’re making it sound as though women aren’t already putting their beliefs (and lives, and fetuses, and future fertility) on the line by choosing to have a VBAC – or any labor/delivery, if you get down to it.

    I think we are actually of accord. I am in agreement with your statement “doctors who engage in a meaningful informed consent dialog with their patients should be able to practice non-negligently without having to worry about a lawsuit for the occurrence of a harm that is a foreseeable risk of VBAC that has been explained and voluntarily undertaken by the woman.” That being said, that is basically what we have now. Doctors that practice non-negligently are generally not sued successfully. The problem is the very grey definition of negligence, and the fact that usually medical negligence gets decided by twelve people with no experience in medicine whatsoever.

    >> The idea is less “radical” and more “half-baked.”

    I agree its half-baked. It was more of a model to create discussion than a finished plan. However, it was a plan that would actually work if parties could agree to it, which is more that can be said for anything else that has been proposed. Often we need to start at something radical that actually will work, then work slowly towards something less radical that also works.

  25. March 12, 2010 at 12:03 pm

    Chandra >> Remember many who have received unecessary c-sections aren’t aware immediately or even for quite sometime afterwards that their c-sections weren’t necessary

    Honestly I don’t agree with the basic premise of an unnecessary cesarean, except in obvious cases of cesarean for convenience. Unnecessary implies that some party knows what the outcome would have been had the cesarean not been done, and no party knows that. Cesareans are performed by obstetricians because they believe they are necessary. Folks then later monday morning quarterback and claim that they were not. Nobody knows which they were, because we don’t get to see the results of both choices.

    When a cesarean is and is not indicated is clearly up to debate, and a lot of anti-cesarean activist folks have very different ideas for the indications for cesarean than many obstetricians.

    But this is a diversion to the general topic…..

    • Bernadette
      March 13, 2010 at 9:42 am

      But wouldn’t you agree that almost all second planned c-sections are unnecessary? Given that the majority of women could successfully VBAC?

      • March 13, 2010 at 3:38 pm

        Wow. No I wouldn’t agree with that at all. Any woman that looks at the risk of VBAC and chooses to undergo a repeat cesarean is certainly having an indicated cesarean, which is a lot of women. Many do think a 1% risk of uterine rupture is too high. Its a personal choice. Many women also need expedited delivery and are not appropriate for VBAC induction (ie severe pre-eclampsia, unfavorable cervix). A breech fetus would also be a good reason.

  26. March 12, 2010 at 12:15 pm

    >> Every malpractice attorney I have talked to is convinced that they are on the side of the angels,

    The thing some of them don’t understand is that they don’t really understand what is going on all the time. I’ve met plaintiff’s attorneys who have said “I have dealt with enough of these cases that I know the medicine better than the doctors do.” What??? Its that kind of attitude that’s just ridiculous. They believe they are on the side of right, but often they just don’t understand the situation well enough to realize that the injury was no one’s fault. I read through summaries of legal cases every now and then and some of them are clearly misunderstood by the plaintiff’s attorney, and sometimes those cases are still won by the plaintiff. But that’s the legal system we have, and why physicians carry professional liability insurance.

    Personally I think that people should be compensated when injuries occur, even when nobody was at fault. What I don’t agree with is bonanza payouts that make it very attractive to sue after bad outcomes.

  27. March 12, 2010 at 12:33 pm

    I said this >> Doctors that practice non-negligently are generally not sued successfully.

    but would add this – A number of the sentinel VBAC / uterine rupture lawsuits that were judged for plaintiff were not based on a claim of physician negligence. They were judged based on a claim that the patient did not understand that the fetus could die in a uterine rupture, which was clearly documented on forms the patient signed and probably in verbal communication as well. So the idea that non-negligent practice protects a physician from litigation in the case of a uterine rupture has not been proven true, and that is a big reason why insurers have balked at covering them. Case law has been that a woman that loses her baby in a uterine rupture can win, even with appropriate informed consent and non-negligent practice.

    • doctorjen
      March 13, 2010 at 6:36 pm

      Can you link or site a “sentinel VBAC/uterine rupture lawsuit” that was successful despite appropriate informed consent and non-negligent? (Please note the quotes are just to be sure I quoted you correctly, not any kind of marker of opinion.) I have seen the Flagg vs. Duffy brought up by another physician several times but this decision was actually overturned by the state supreme court (the case where the plaintiff argued that even though she’d received good informed consent, the physician had a duty to tell her a previous uterine rupture she’d handled had involved the death of the infant.) I did a CME through my malpractice carrier last year specifically on reducing liability risks from VBAC and the cases they reviewed in my state were mostly based on negligence or failure to obtain adequate informed consent. The biggest awards seemed to actually be the most egregrious malpractice cases in the cases presented in this CME. I’m trying to get a sense of what the true risk of being sued over VBAC is, when good informed consent is practiced and there is no negligence. I know this is something physicians worry about (heck, I worry about it!) but I’m trying to figure out to what extent this is a big enough worry to justify limiting options for patients, and to what extent it’s an “urban myth” so to speak.
      You mention earlier that women want the choice to VBAC and then want to be able to blame someone if they have a bad outcome “So women are willing to take the risk to their babies of doing VBAC (small risk admitedly) but want somebody else to pay them off if that event happens, despite their prospective acceptance of that risk. That’s not fair either.” To be fair, I don’t think that’s what anyone on this comment section has said – what has been said is that women are reluctant to give up all recourse in the case of malpractice. Without a disclaimer for true negligence, I’m not sure your specific consent form would gain much ground. I do think it’s a sign of how much distrust there is, at least among some segment of the child bearing population and physicians, that there would be so much reluctance to give up the right to sue.

      • March 14, 2010 at 12:50 pm

        Not being a legal scholar, I can’t give you specific cases. Maybe some is urban myth, but given the cases we see every month in OBG Management I don’t think so. There are uterine rupture cases in there with some frequency, and they are often judged or settled for plaintiff despite apparent good care. Admittedly I am going off of a several paragraph summaries of an entire legal cases.

        But here’s the catch –

        If you say that you can only sue if there is negligence, how will that be decided? I assume via a court system, and then we’re right back where we started. If somebody is suing for a uterine rupture, I would assume is a suit for negligence, unless its a consent issue.

        I just had another idea which I will post as another comment at the bottom.

  28. March 12, 2010 at 1:43 pm

    I agree that we need tort reform. I like the idea of a federally supported consent form that would protect health care providers from lawsuits in the very rare cases when there are unavoidable bad outcomes with VBAC. But one difficult fact that is hard to get around is that juries sometimes give very large amounts of money to plaintiffs even when they do not think the defendant is at fault. They feel sorry for the plaintiff and want “someone” (the insurance company or “rich” doctor) to compensate the plaintiff. I know a defense attorney well who has been in practice for over 30 years. It is unbelievable what some people sue for (not just medical malpractice), and equally unbelievable what some juries decide.

  29. StuntedMonkey
    March 12, 2010 at 1:59 pm

    So is the added risk (double) that comes with induction and augmentation going to be documented for clients seeking a hospital room and possibly pain relief for VBAC?

    If we are interested in informed consent I would like to argue that failing to disclose that synthetic oxytocin doubles the risk of uterine rupture during VBAC would be a failure to obtain consent.

    Also, if women seeking a VBAC are asked to sign away their legal rights, how soon will it come to pass that the rest of the birthing community will be asked to do the same regardless of the level of risk?

    And if doctors are not to be held responsible for malpractice during birth, then the precedent will be set for doctors to eventually shed liability for ALL malpractice.

    What a carrot VBAC is! Dangling there in front of our eyes. Close enough to smell, but not close enough to grasp. How far are we willing to go to try to get it?

    It would be quite a story if women started carpooling their pregnant bellies and swollen ankles all the way to Canada. Funny how they manage to VBAC there.

  30. StuntedMonkey
    March 12, 2010 at 3:47 pm

    “common preventable errors included failure to control blood pressure in hypertensive women and failure to pay attention to vital signs after C-sections.”

    Removing families rights to sue for malpractice and negligence while undergoing medical supervision will remove the last vestiges of vigilance in our already broken system. Once the family can no longer sue the motivation to provide an adequate standard of care is gone. The rising maternal mortality rate in the United States is the proof in the pudding that there needs to be more accountability, not less.

    http://www.amnestyusa.org/dignity/pdf/DeadlyDelivery.pdf

    The Amnesty report comes on the heels of an investigation in California that found that maternal deaths have tripled there in recent years, as well as a maternal-mortality alert issued in January by the Joint Commission, a group that accredits hospitals and other medical organizations, which noted that common preventable errors included failure to control blood pressure in hypertensive women and failure to pay attention to vital signs after C-sections. And just this week, a panel of medical experts at a conference held by the National Institutes of Health (NIH) recommended that physicians’ organizations revisit policies that prevent women from having vaginal births after having had a cesarean. Such policies, designed in part to protect against litigation, have contributed to the rise of the U.S. cesarean rate to nearly 32% in 2007, the most recent year for which data are available.

    • March 13, 2010 at 3:43 pm

      >> If we are interested in informed consent I would like to argue that failing to disclose that synthetic oxytocin doubles the risk of uterine rupture during VBAC would be a failure to obtain consent.

      This is fair, though the idea of “synthetic” oxytocin doesn’t make any sense to me, as pitocin is oxytocin at an atom for atom level. It is no different than the hormone produced at the posterior pituitary. The problem is the ability to deliver far more of the hormone than would be present naturally.

      Patients should be told that adding pitocin to a VBAC does increase the risk of rupture from about 0.5% to 1.0%. Many feel that the use of an IUPC may mitigate this risk by limiting pitocin use to an amount adequate to achieve “adequate” contractions based on montevideo units, though this has not been proven by any data (nor disproven.)

  31. March 12, 2010 at 4:02 pm

    StuntedMon – you point out a number of the issues that would stand in the way of this type of legislation. Not everyone is willing to remove avenues of recourse, but hospitals do not want to provide a service under uncontrollable risk. Its a bit of a catch-22. I proposed something that would work – not necessarily something that would be popular.

    It is not like there are not precedence for removing recourse – ie agreements to enter binding arbitration vs litigation. My proposal is a very narrow idea governing litigation for uterine rupture, not general malpractice – to control that single liability.

  32. March 12, 2010 at 5:25 pm

    Thank you for offering a sane option to the current irrational fears about the risk of uterine rupture. An informed consent document that tells the truth about cesarean surgery. Readers may want to read the Coalition for Improving Maternity Services Fact Sheet-The Risks of Cesarean Section (which includes 85 references) and the accompanying Mother’s Checklist on the Risks of Cesarean Section. Women are not told about the risks of cesareans early enough in their pregnancy to make an informed decision about signing on for a cesarean that is not medically indicated. Both documents are available as a free download from http://www.motherfriendly.org.

  33. Aly
    March 12, 2010 at 7:08 pm

    I’m not sure I agree with everything proposed, but thank you, thank you for not being insane! You seem to truly care about women’s rights, and I wish there were more like you.

  34. March 13, 2010 at 4:12 am

    “It would make much more sense for everyone to pay into a pool that would pay out a standardized amount of money for certain events, similar to what is done in the vaccine risk pool.”

    I strongly support no-fault compensation and think it would go a long way in alleviating the malpractice crisis we’re facing. Our lack of universal health care also feeds the problem, because parents with a high-needs baby due to problems at birth face huge medical/therapy bills they cannot pay.

  35. mkirschmd
    March 14, 2010 at 3:45 am

    Nick, regrettably, in OB/GYN legal vulnerability of physiicans seeps more deeply into the medical advice. If you peeled this away from the VBAC and other issues, patients would get the cleaner advice they are entitled to. http://www.MDWhistleblower.blogspot.com

  36. CountryMidwife
    March 14, 2010 at 5:05 am

    Dr. Nic – one problem I see is that different doctors are quoting different risks of uterine rupture. You mentioned 1% risk… I’ve heard OBs quote 1-3% with a 20% rate of the baby dying. But here is the summary from the NIH conference…

    Considering all gestational ages, uterine rupture occurs in approximately 325 per 100,000 women undergoing TOL. The risk of uterine rupture for women who undergo TOL at term is 778 per 100,000. The risk of uterine rupture for women who undergo ERCD is 26 per 100,000 when all gestational ages are evaluated and 22 per 100,000 for women who are at term at the time they give birth.

    Overall, 14 to 33 percent of women will need a hysterectomy with uterine rupture. Approximately 6 percent of uterine ruptures will result in perinatal death. This is an overall risk of intrapartum fetal death of 20 per 100,000 women undergoing TOL. For term pregnancies, the reported risk of fetal death is less than 3 percent.

    Do you agree that these are now the numbers we should all be using?

  37. CountryMidwife
    March 14, 2010 at 5:45 am

    Or, are these the numbers to use? (from the summary):

    While rare for both TOL and ERCD, maternal mortality was significantly increased for ERCD at 13.4 per 100,000 versus 3.8 per 100,000 for TOL. The rates of maternal hysterectomy, hemorrhage, and transfusions did not differ significantly between TOL and ERCD. The rate of uterine rupture for all women with prior cesarean is 3 per 1,000 and the risk was significantly increased with TOL (4.7/1,000 versus 0.3/1,000 ERCD). Six percent of uterine ruptures were associated with perinatal death

    Why does the same document contain conflicting data or am I confused here?

    • March 14, 2010 at 1:05 pm

      >> Considering all gestational ages, uterine rupture occurs in approximately 325 per 100,000 women undergoing TOL

      That’s 0.325%, but includes all gestational ages, which would mean including the many second trimester deliveries that have an almost 0 rupture rate.

      >> The risk of uterine rupture for women who undergo TOL at term is 778 per 100,000

      That’s 0.7% for trial of labor at term, including all comers (induction + spontaneous labor + twins + whatever.”

      >> ERCD – 26 per 100,000 when all gestational ages are evaluated and 22 per 100,000 for women who are at term at the time they give birth.

      so about 0.025% rupture spontaneously prior to cesarean in planned elective cesareans.

      >> The rate of uterine rupture for all women with prior cesarean is 3 per 1,000 and the risk was significantly increased with TOL (4.7/1,000 versus 0.3/1,000 ERCD).

      0.47% rupture with TOL at term.

      So they quote two slightly different numbers for TOL at term 0.47% in one case and 0.7% in another. I don’t know why that is. Digging deep into the doc might lead one to figure it out, or maybe they just used different data sets in either place. It doesn’t matter much. I don’t think any of that data suggested a 3% rupture rate for VBAC. Rupture rates are higher, though, in women with low vertical cesareans (1-3%) and for classicals (10+% – which we never VBAC).

      But the important part of that data is that for every 100,000 women who VBAC, there will be about 70 ruptures, and if they all had repeat LTCS, only 2 would rupture. People want to minimize that but it is very real. On a population level, VBAC is a very good idea. But for the few that rupture, it was a terrible idea.

      Somebody said that based on stats any second cesarean would be unnecessary, which I disagreed with. These numbers bear this out. Obviously for the 70 that rupture a cesarean was necessary, but they didn’t get one. For the other 999,930 it wasn’t (at least not to prevent uterine rupture). Of course the problem is that we do not know who is who up front.

      Patients who value not taking a tiny chance of a terrible outcome righfully choose a repeat cesarean. Patients who value a vaginal delivery and not taking the risks of cesarean (which are more common but less severe than uterine rupture) will choose VBAC. As long as they understand those options, either choice is fine.

  38. Bernadette
    March 14, 2010 at 7:48 am

    Nicholas Fogelson :Wow. No I wouldn’t agree with that at all. Any woman that looks at the risk of VBAC and chooses to undergo a repeat cesarean is certainly having an indicated cesarean, which is a lot of women. Many do think a 1% risk of uterine rupture is too high. Its a personal choice. Many women also need expedited delivery and are not appropriate for VBAC induction (ie severe pre-eclampsia, unfavorable cervix). A breech fetus would also be a good reason.

    Dr. Nick, I really appreciate everything you are doing- taking the time to have this important discussion alone puts you in the upper echelon of doctors in my opinion. That being said, I think your comment above assumes that women are adequately counselled in the risk of VBAC and repeat c/s BOTH. And unfortuantely, I doubt very much that is the norm. Many doctors or hospitals don’t even “allow” VBAC, many doctors “allow” them but then pull a “bait and switch” in the ninth month, and many “allow” them but then scare the mother for nine months until she consents to a repeat c/s. It is not realistic to think that women who are adequately counselled in the risks/benefits of both VBAC and repeat c-section are deciding that a VBAC is too risky to the point where our VBAC rate is a dismal 8%.

    Did you see the March 7th article in the NY Times? It is about Tuba City hopsital. Their c/s rate is 13.5%, which is very good. “Doctors say there is no scientific evidence that Native American women are more able than others to have vaginal births.” It is almost funny that the reporter felt that statement was necessary. The article states that most of the vaginal deliveries are attended by midwives. “Dr. Amanda Leib, the director of obstetrics and gynecology at Tuba City, said: “I think the midwives tend to be patient. They know the patients well, and they don’t have to leave at 5 to get home for a golf game or a tennis game. As crass as that sounds, I do think it has some influence.”” I think Dr. Leib summarizes a very real reason why there are some, if not many, unnecessary c-sections.

    I don’t think there is any question that there are many unnecessary cesareans performed in our country. I think there is a lot of academic research and certainly anecdotal research that demonstrates that. And at what cost? There is no question that except for special circumstances, when a c/s is a necessary tool, mothers and babies do better with vaginal deliveries. And I think it is becoming more and more obvious that there is a “tipping point” for cesareans after which we are starting to do more harm than good. Commonly, we hear 15% as the number at which once we go past, the risk are outweighing the rewards. Why do we rank 41 for maternal mortality out of what, 190 countries in the world? And that is with us spending more on birth than any other country in the world? Why, out of the seven industrialized nations that deliver 400K babies or more per year, are we number ONE in infant mortality? Even after you take away obesity, prenatal care, diabetes, it still comes down to too many cesareans. Dr. Eugene R. Declercq, PhD, Professor of Maternal and Child Health, Boston University School of Public Health, shows the connections and sad realities in “Birth by Numbers”.

    http://www.orgasmicbirth.com/birth-by-the-numbers

    Thanks again for your thoughtful discussion!! I wish more doctors took what is actually best for mother and baby as seriously as you do.

    • March 15, 2010 at 2:50 am

      >> It is not realistic to think that women who are adequately counselled in the risks/benefits of both VBAC and repeat c-section are deciding that a VBAC is too risky to the point where our VBAC rate is a dismal 8%.

      The whole reason this discussion is going on is because there are reasons that women are not getting VBACs _other_ than informed consent.

      >> That being said, I think your comment above assumes that women are adequately counselled in the risk of VBAC and repeat c/s BOTH. And unfortuantely, I doubt very much that is the norm.

      What I think is going is that different groups look at the same numbers differently. VBAC supports look at 0.5-1% risk of rupture and say “that risk is so small! why would you make decisions based on this”, while many obstetricians look at it as a 0.5-1% risk of preventable disaster, which is equally accurate.

      I do agree that the risks of repeat cesarean are downplayed in some circumstances. To be fair to OBs though, those data are much more difficult to interpret and get a handle on and there are no clearly accepted numbers for cesarean complications.

      An OB that is not a strong VBAC supporter may explain the risks of cesarean as standard operative risks, without a particular emphasis on downstream effects of multiple cesareans, and make particular emphasis on uterine rupture risks. An OB that is a strong VBAC supporter may do just the opposite. All are using the same numbers.

      This illustrates the utility of a nationally recognized VBAC consent form that would standardly and appropriately illustrate all the known effects of the choice to VBAC or have a repeat cesarean.

  39. March 14, 2010 at 1:13 pm

    So folks here have been against the idea of protecting a physician in cases of negligence, which as I have pointed out may not mean much.

    How about this –

    If the federal consent form is signed, no patient can bring a suit _on the grounds of not having adequate consent_. This would have stopped Flagg vs. Duffy, which was decided in favor of the physician on grounds of lack of negligence, until it was appealed on grounds of inadequate informed consent.

    Perhaps that is the better way to do it.

    That’s a topic. Have a coffee. Discuss.

    Of course it would be nice to not be the only OBGYN discussing this. I’ve tried to drag a few over from Sermo but no luck so far.

  40. March 15, 2010 at 5:18 pm

    re – suing for cesarean. It is a truism that might be true that you never get sued for doing a cesarean. In order to launch a lawsuit, you must prove breach of duty AND harm. If a woman suffered a complication after cesarean, that would generally be considered as part of informed consent – e.g. you may suffer DVT, infection, wound infection, after cesarean – so no grounds for lawsuit. Breach of duty might come into play if orders weren’t written for DVT prevention, or proper physical exam wasn’t documented – but, basically, you can’t sue for a cesarean birth, no matter what the outcome.

  41. Rebecca S
    March 15, 2010 at 6:05 pm

    My other concern with the concept is that it may only go to reinforce the idea that birth is safe in general, and that people are entitled to good outcomes. Would a bad outcome from ERCS, which would seem safer, considering that no iron-clad consent were required to undergo it, then become the big payout lawsuit?

  42. MomTFH
    March 16, 2010 at 3:37 am

    I think that the form is a good idea until you get to the part about not requiring the standards be followed, but then releasing responsibility. If the standards are truly impossible to follow, such as in a rural community, then fine, I understand adding in additional, institution specific language about the availability of anesthesia, etc. But, if the physician is just trying to balance a call schedule with clinic patients and doesn’t respond adequately to appropriately reported warning signs, or uses cytotec, or something along those lines, then I don’t think the document should be able to prevent a malpractice suit.

    When I trained at a freestanding birth center that was allowing VBACs for a while, we had two similar documents. One was a document about the nature of a freestanding birth center, and the availability of some emergency measures, but not surgery, and the necessity for transfer under certain conditions. If the patient was a VBAC, we had a separate consent form with language about the risks of VBAC (none about the risks of repeat cesarean). There was no request for release of malpractice liability on either, and the midwives all had to carry malpractice insurance.

    So far I only have very preliminary data for my research project, but in my target population of ob/gyns in South Florida, a much, much lower percentage than I expected is reporting institutional or liability related bans on performing VBAC. My research shows, so far, stronger numbers supporting attitudinal barriers rather than infrastructural or medicolegal barriers.

  43. StatlerWaldorf
    March 16, 2010 at 4:27 am

    Nicholas said, “I also agree that there should be a mechanism to investigate bad outcomes, and some mechanism to re-enter the standard legal system if dramatic negligence can be demonstrated. I’m not looking for a way to protect people from gross malpractice, just a way to protect doctors and hospitals from being destroyed by the rare and unpreventable uterine ruptures that do occur in VBAC.”
    I also assumed this when I read your first proposal, and I think your latest suggestion that patients cannot bring a legal suit on the grounds of inadequate informed consent is a good one.

    There are many reasons why vbacs are being discouraged, and at least tackling the medicolegal side would be very helpful. However, you, Rixa and MomTFH have pointed out that there is still the issue of a proportion of ob-gyns disagreeing personally with vbac and therefore discouraging it. How to tackle that?

    • March 16, 2010 at 10:02 am

      to combine two comments

      >> there is still the issue of a proportion of ob-gyns disagreeing personally with vbac and therefore discouraging it. How to tackle that?

      and MomTFH

      >> if the physician is just trying to balance a call schedule with clinic patients and doesn’t respond adequately to appropriately reported warning signs….

      Having a busy clinic and laboring a VBAC simultaneously clearly puts the physician under pressure. Perhaps the better solution is for groups to have in house laborists on a rotation schedule or to use hospitalists. This is already the cases in many places. This of course makes it very likely that the person managing the labor and delivery is not the physician that primarily did the OB care. These are the things one trades off.

      >> How to tackle that?

      Part of it is to accept that some physicians don’t like VBACs, for any number of reasons. Some personalities don’t like the idea of a 1% risk of a super emergency, while others are more comfortable with the idea. Some have had bad anecdotal experiences that have colored their view of VBAC for better or worse. Docs who have had bad personal experiences with VBAC may choose not to do them anymore.

      Some physicians are more comfortable with VBAC than others. There is not a right and wrong here – its all opinion and different point of view. That being said, if one physician isn’t comfortable with VBAC and a patient is seeking it, it is helpful if the non-VBAC physician is able to refer the patient to a doc willing to do it.

  44. March 16, 2010 at 9:04 am

    I’m just wondering if someone could answer this for me…

    What is the risk of cord prolapse with AROM and how does that compare with UR in VBAC? I’m just curious because I know the risk is out there and yet doctors have no problem rupturing membranes and there is no formal informed consent for it. Or is UR more risky with VBAC’s than cord prolapse?

    • March 16, 2010 at 9:52 am

      I don’t think this has been studied, as cord prolapse is a very rare event, and always is associated with rupture of membranes, artificial or not.

      >> Or is UR more risky with VBAC’s than cord prolapse?

      These are two completely unrelated events, unless you are talking about cord prolapse through a uterine rupture (which does happen in some uterine ruptures).

      • March 16, 2010 at 10:04 am

        I knew they weren’t related. I guess part of what I’m wondering is why doctors will so easily rupture membranes with the association with cord prolapse, and yet have a harder time accepting the risk of UR with VBAC’s. I guess what I’m wondering is, why is the risk of UR considered worse than the risk of cord prolapse? Are they not both deadly? Or is cord prolapse considered less of a risk? Do people not sue for cord prolapse associated with ruptured membranes?

  45. March 16, 2010 at 10:07 am

    1) I don’t think that rupturing membranes is a particularly dangerous thing to do. If the head is down in the pelvis, AROM shouldn’t cause a cord prolapse because the head is in the way. AROM when the head is floating can rarely lead to cord prolapse, which is why I generally don’t do that.

    2) cord prolapse leads to an unanticipated cesarean delivery, but in the setting you describe would be very unlikely to lead to a bad outcome.

    I feel that the natural birth community has a very overblown concern about the dangers of AROM. It speeds up labor in many cases. If that is not something that is desired, there is little reason to do it. If that is desired, it tends to help. AROM is also a well studied method of induction, and used to be what we did before IV pitocin drips.

    • March 16, 2010 at 5:42 pm

      It just seems like the perceived risks for arom is considered acceptable to many, or that the benefits outweigh the risks.

      “I feel that the natural birth community has a very overblown concern about the dangers of AROM”

      And it appears that many feel like doctors/insurance companies/hospitals have done the same thing with VBACS. My point is not so much that arom is dangerous and shouldn’t be done, but that it appears that the medical community accepts those risks(granted, I don’t know those stats as well with that), and don’t accept the risks of VBAC’s.

      It appears to me that our problems with VBAC’s stem from the cultural acceptance of the risks of c-sections and not accepting the risks of VBAC. Changing informed consent rules and liability rules are important, but it does not change the fact that we are dealing with cultural acceptance of risk vs. benefits. If women were to choose something that is not deemed culturally acceptable, then they have a hard time finding someone to accept her choice.

      “There is not a right and wrong here – its all opinion and different point of view. That being said, if one physician isn’t comfortable with VBAC and a patient is seeking it, it is helpful if the non-VBAC physician is able to refer the patient to a doc willing to do it.”

      This is what it comes down to…and I think it is these sorts of things that I think would be useful to work on.

      • March 17, 2010 at 1:34 am

        >> It appears to me that our problems with VBAC’s stem from the cultural acceptance of the risks of c-sections and not accepting the risks of VBAC.

        Probably.

  46. StuntedMonkey
    March 16, 2010 at 1:43 pm

    Oh for Pete’s sake. If you are a pregnant woman, you should look up the risks/benefits of AROM yourself.

    If you are a medical practitioner who routinely employs AROM then you are in violation of the WHO consensus. Also:

    Smyth R, Alldred S, Markham C. Amniotomy for shortening spontaneous labour. Cochrane Database Syst Rev 2007(4):CD006167.

    BACKGROUND: Intentional artificial rupture of the amniotic membranes during labour, sometimes called amniotomy or ‘breaking of the waters’, is one of the most commonly performed procedures in modern obstetric and midwifery practice. The primary aim of amniotomy is to speed up contractions and, therefore, shorten the length of labour. However, there are concerns regarding unintended adverse effects on the woman and baby. OBJECTIVES: To determine the effectiveness and safety of amniotomy alone for (1) routinely shortening all labours that start spontaneously, and (2) shortening labours that have started spontaneously, but have become prolonged. SEARCH STRATEGY: We searched the Cochrane Pregnancy and Childbirth Group’s Trials Register (30 March 2007). SELECTION CRITERIA: Randomised controlled trials comparing amniotomy alone versus intention to preserve the membranes. We excluded quasi-randomised trials. DATA COLLECTION AND ANALYSIS: Two authors assessed identified studies for inclusion. Both authors extracted data. Primary analysis was by intention to treat. MAIN RESULTS: We have included 14 studies in this review, involving 4893 women. ****There was no evidence of any statistical difference in length of first stage of labour (weighted mean difference -20.43 minutes, 95% confidence interval (CI) -95.93 to 55.06)****, maternal satisfaction with childbirth experience (standardised mean difference 0.27, 95% CI -0.49 to 1.04) or low Apgar score less than seven at five minutes (RR 0.55, 95% CI 0.29 to 1.05). Amniotomy was associated with an increased risk of delivery by caesarean section compared to women in the control group, although the difference was not statistically significant (RR 1.26, 95% CI 0.98 to 1.62).There was no consistency between papers regarding the timing of amniotomy during labour in terms of cervical dilatation. AUTHORS’ CONCLUSIONS: On the basis of the findings of this review, we cannot recommend that amniotomy should be introduced routinely as part of standard labour management and care. We do recommend that the evidence presented in this review should be made available to women offered an amniotomy and may be useful as a foundation for discussion and any resulting decisions made between women and their caregivers.

    You FAIL Dr. Nick.

    • March 17, 2010 at 1:24 am

      Hmm. Knife in heart.

      >> On the basis of the findings of this review, we cannot recommend that amniotomy should be introduced routinely as part of standard labour management and care

      I’m quite aware of that literature thank you. Nobody claimed that AROM should be used routinely. It does speed stalled labors going in many circumstances. Large stats will find the averages, but the clinical experience of thousands of obstetricians are filled with many circumstances where AROM got a labor going that previously was going nowhere.

      In the past, some obstetricians did AROM in just about every patient at the earliest opportunity. I think this practice is probably not justified. That being said, it is still a very useful tool in many situations. Add – I’ve been involved in thousands of labors and have seen plenty of labors with and without AROM, and that clinical experience suggests to me that AROM does have an effect in many labors.

      StuntedMonkey >> You FAIL Dr. Nick

      Personally I find these types of comments not in the best interest in dialogue.

  47. Aly
    March 17, 2010 at 4:39 pm

    I don’t understand. Why the difference between obstetrician experience and 14 controlled studies? Out of 4000 women, there was a 20 minute difference? Why bother doing it? Why don’t controlled studies reflect clinical experience?

    I agree about the nasty comments. I also noted that AROM wasn’t shown to be risky either, at least in these studies. But why didn’t they look at infection rates?

    Anyway, osrry to go OT. I think it’s an interesting question though, about why obstetricians are fine with certain risks, with elective cesareans for example,or cytotec, but not others, like vbac. I’m also very curious about the role that ACOG’s 2004 vbac guidelines played in the malpractice rate and access to vbac. Kind of a chicken or egg question, I suppose.

    • March 17, 2010 at 4:54 pm

      I’m not sure. I think the answer is that on the average, AROM does not seem to speed up labor that is already in progress. There are always outliers that are not found within large numerical studies, which by mathematical design will be eliminated from the results.

      AROM for induction has been well studied, and data does support it. However, we don’t do this as much anymore as we have pitocin, and rupturing a patient who isn’t in labor can increase the rate of infection.

      AROM + lots of cervical exams = higher chance of infection
      AROM + no cervical exams = not any higher risk, in my experience/opinion.

      I have found AROM to be very useful in getting a labor going when pitocin hasn’t been working. I always teach my residents, however, that once they AROM they should stop checking the patient – just wait until she needs an epidural or pain meds or wants to push. AROM and then checking the cervix every few hours is a recipe for chorioamnionitis.

      Two experiences to share:

      On mission trip in Micronesia. 38+ week woman comes to hospital with severe headache, is diagnosed with severe pre-eclampsia. We have no pitocin or magnesium, and no mechanism for an IV drip anyway. She is not in labor. We do an amniotomy, she is in labor in 4 hours and delivered by morning.

      Private patient under my care during my chief resident year. Induction with unfavorable cervix because patient is leaving country and needs to deliver prior to leaving (we can argue that as an indication obviously.) Anyway – on pitocin and or misoprostol x 36 hours, still not in labor. Amniotomy is done, baby is delivered four hours later.

      Every OB has had many experiences like this.

      My general feeling is this – if the patient is not in active labor, AROM helps her get there. If she is already in active labor, it doesn’t speed anything up. If she was in active labor but is now stalled, it seems to help, but that seems less clear.

    • March 17, 2010 at 4:58 pm

      >> Why don’t controlled studies reflect clinical experience?

      I’d also say this – 20 minutes difference is an average. In some cases it is much greater, and in some it had no effect. Humans tend to remember the extremes, so the few cases that were really helped by AROM are remembered better than the cases where it didn’t seem to have as much effect. Its part of the bias of clinical practice, but also how we identify the folks that won’t be described by the studies.

      Every person is different, and studies define only the averages. Sometimes a situation seems different than the average, and sometimes that leads one to choose a different path than the average evidence would suggest. Its part of clinical experience. That may or may not be the right decision, but it always has been and always will be part of the art of medicine.

  48. Guest
    March 20, 2010 at 7:11 pm

    Since it is no problem to take away our right to sue for vaccine adverse events (Eli Lily Protection Act, from Patriot Act) or to make us go through a special court instead of a regular court, you would think VBAC consent would be no problem.

  49. CountryMidwife
    March 21, 2010 at 12:18 pm

    Doctor Nic, can you help me? I’m still stuck in the numbers. Let’s take the 0.4% chance of rupture, as I’m dealing with low-risk, term, non-augmented women. Of that 0.4% who do rupture, 6% will lose their babies. I think that equates to 2.4 babies dying per 10,000 women. While the maternal mortality rate from ERC is 1.3 per 10,000 mothers. Do I have the numbers wrong? I’m concerned that everyone is still running around quoting a 1% chance risk of rupture with a 20% perinatal mortality rate, when these numbers are simply not supported. Not to mention that I’ve never seen an informed consent with a maternal mortality rate quoted for planned repeat c/s. I know Cochrane tries, but WHY is it, that given the US has nearly 14,000 births PER DAY (and a 30+ percent c/s rate) we cannot have black and white statistics for every given scenario?

    • March 23, 2010 at 12:03 pm

      >> I know Cochrane tries, but WHY is it, that given the US has nearly 14,000 births PER DAY (and a 30+ percent c/s rate) we cannot have black and white statistics for every given scenario?

      Because we have a private health care system that does not have a country wide organized statistics system. If you want that kind of data you have to go to a socialized medicine country that uses a standardized computer system throughout the whole country. The Scandinavian countries are a good example – they all have very strong perinatal databases that cover almost every delivery in their country. That would be near impossible here.

    • March 23, 2010 at 12:07 pm

      >> I’m still stuck in the numbers.

      The numbers vary because they come from different studies. Not all studies have found the same risks, probably because they looked at different patient populations and have different care environments.

      I think of rupture rate at 0.5 – 1.0% and fetal injury and death rate as about 10% in the case of rupture. These numbers are close enough to make an informed decision about VBAC. Does it really matter if its 0.4% or 0.5% or 1.0% Is that really going to be the difference? Ultimately choosing VBAC is choosing to take a small risk of a catastrophic outcome in return for a good chance to avoid a cesarean.

      A uterine rupture is a terrible thing even if the baby does great. It is a super emergency that is scary for doctors and patients. If there is a rupture and the baby does well, its still a scary experience for mom.

  50. CountryMidwife
    March 23, 2010 at 1:56 pm

    Rupture is scary for mom, but remember that hyst, hemorrhage, and other morbidities are not actually higher in VBAC compared to elective repeat C/S. So I think they should be presented as “equally scary if something goes wrong”.

    I think it’s quite sad we can’t have adequate statistics. No other business would flourish as modern obstetrics has, without being certifiably beneficial. I don’t think it takes a standardized health care system to enable the collection of statistics. I think in today’s world it’s very achievable, if wealthy lobby-rich groups weren’t categorically opposed to self-assessment… but I digress…

    Thank you Dr. Nic for respecting how much vaginal birth can matter to women. Few doctors do.

    • March 23, 2010 at 2:13 pm

      We do collect stats, we just don’t have huge perpetual databases like socialized countries do. We do have some systems, like Kaiser, that have contained patient populations, and thus are able to keep good stats. Other databases are created with NIH or other grant funding, and result in the data we do have.

      >> hyst, hemorrhage, and other morbidities are not actually higher in VBAC compared to elective repeat C/S. So I think they should be presented as “equally scary if something goes wrong”.

      As an obstetrician that has done a hell of a lot of deliveries, maybe a thousand cesareans, and managed a number of uterine ruptures, I can tell you that those other complications are not equally scary to me, and I don’t think to the mothers I have cared for either.

      >> Dr Nic
      HELLO EVERYBODY!

      PS the shortened form of Nicholas is typically “Nick” not “Nic”

  51. CountryMidwife
    March 24, 2010 at 12:47 pm

    Sorry for the offense! I guess I don’t understand a nickname adding a letter that doesn’t exist but I will do better next time.

  52. CountryMidwife
    March 24, 2010 at 12:51 pm

    <>

    But it still comes down to the fact that the risk of morbidity and mortality from rupture is much lower than what is put out by the average OB. I mean, statistically, how many vbacs you have to do to have a single mortality from a rupture: 9,990 + … you see what I’m saying. But I’m beating this dead thread and will step back, thanks…

    • March 24, 2010 at 1:23 pm

      You are right that the stats show uterine rupture to be extremely rare. As long as mothers understand all sides of the issues they should choose what makes sense to them. I am a big supporter of VBAC in most cases

      The reality is that modern medicine is very good from keeping people from dying from bad things. Typically uterine ruptures can be managed, as long as there is blood an a surgeon around when it happens.

  53. CountryMidwife
    March 25, 2010 at 1:43 pm

    I agree, I am uber-grateful for modern medicine when it’s needed. My bone to pick is that of all modern medicine, I think it’s pretty clear that obstetrical science is the least evidence-based of all the specialties. And despite the recent media about increasing maternal mortality and the probable culprit of the high c/s rate AND the recent NIH data… ACOG has no response. Your average OB has no response and won’t change a thing. Please know, I’m cognizant of and sensitive to the burden of 24/7 call and ridiculous liability and the trickle down from both. But I am sure we can do better. I may just need to be patient. Thanks for the dialogue.

  54. March 25, 2010 at 2:55 pm

    OK here’s some more dialogue –

    >> I think it’s pretty clear that obstetrical science is the least evidence-based of all the specialties

    Do you really think so? I think there are non evidence based practices throughout medicine, and that you may be a little biased having far more knowledge of childbirth than the other fields of medicine (I’m assuming). Antibiotics are used unnecessarily all over the place in general practice. Cardiologists are placing stents all over despite evidence that medical therapy works as well. Its everywhere. It takes a long time for data to change practice.

    >> recent NIH data

    NIH didn’t present new data. They just reviewed the data that was already there, and as an OB, they didn’t present anything I didn’t already know. They pointed out the problems we face, and suggested a bunch of studies. They didn’t really propose any solutions.

    Ask any OB what the risk of uterine rupture is in a VBAC, and most will quote similar number to what NIH presented. But they look at these numbers different that VBAC activists do. If you look at them as pure numbers, VBAC makes a huge amount of sense. But if every time you think of VBAC you think back to the horribly stressful and scary experiences you have had dealing with a uterine rupture, you may look at the numbers differently. Folks want to talk about post cesarean PTSD? Well there is OB uterine rupture PTSD too!

    >But I am sure we can do better

    Me too.

  55. bobbie
    March 27, 2010 at 1:40 am

    Gee thanks Nick for showing us you either don’t care or don’t know what rights women have during labor and delivery.

    FYI, the hospital has to offer her anythign within its capabilities and transfer if she requires more. You are not doing us any favors by requiring people and places that say they aren’t good at VBAC to do it.

    All it does is give more revenue with fewer expenses (monitoring or liability if it is substandard), and therefore more profits to you and yours.

    What a guy!

    • March 27, 2010 at 10:18 am

      >> the hospital has to offer her anythign within its capabilities and transfer if she requires more

      I think EMTALA is a little grey in this situation. The hospital has to provide triage and stabilizing care. Its unclear that monitoring a VBAC would be considering stabilizing care if nothing bad is happening when the mother arrives. EMTALA certainly does not require that a hospital provides anything in its capabilities to anyone who needs it. The whole issue is moot though, as no hospital is going to send a patient away for refusing a repeat cesarean once the patient has arrived to the hospital.

      >> You are not doing us any favors by requiring people and places that say they aren’t good at VBAC to do it.

      Well that’s sort of been my point in certain parts of this thread. Some folks want the right to VBAC in any hospital and say any hospital that can birth a baby should be able to VBAC a baby. I pointed out that not all hospitals can meet the same standards, which not everybody wants to believe/accept. Ultimately I am supportive of a women having a VBAC at any hospital, as long as they have a reasonable expectation of the level of care they are going to get in the event of a uterine rupture, and the speed of response they can expect. If a hospital doesn’t have the resources to have folks instantly available and a patient still wants to VBAC there, they ought to have some kind of protection from litigation from a VBAC event.

      Its just a reality thing – we are where we are because of litigation, so if we want to change the situation we’re going to have to address that.

      • bobbie
        April 1, 2010 at 3:09 am

        “Its unclear that monitoring a VBAC would be considering stabilizing care if nothing bad is happening when the mother arrives.”

        It is not unclear. It is simply ignored all too often.

        She is covered until the delivery of the placenta. If something happens before then and it is not stabilized, the doc and hospital are outside the law.

        If they tempt fate and win, no problem. EMTALA is complaint and violation driven. But, eventually fate will catch up with them.

        “Some folks want the right to VBAC in any hospital and say any hospital that can birth a baby”

        They don’t. But, it is up to the doc and hospital to tell them that and make arrangements for transfer.

        They might want brain surgery or radiation therapy close to home too. But if the hospital and docs aren’t skilled at it, they don’t fake it or offer poor substitutes and hope nothing bad happens and no one notices. They send them elsewhere.

        “as long as they have a reasonable expectation of the level of care they are going to get in the event of a uterine rupture, and the speed of response they can expect.”

        Their expectations are irrelevant under EMTALA. You can’t consent or waiver your way out of it.

        Although, if you did fully inform them, as you must for a transfer, you would have to tell them that if they rupture, they are essentially on their own, because there’s no way you could ever get to them on time. That should solve your problem. There won’t be any signers of that form.

        People want to VBAC in every itty bitty hospital because these itty bitty places keep trying to tell people they are just as capable as the big ones, and closer to home.

        If they informed women about this, women might start wondering about the delay in a suddenly arising emergency in non-VBACs. They might start shunning these hospitals where OBs come in from outside. This is a model of care that is past way its sell-by date in all but the smallest towns. This is the root of the problem. Litigation is merely the side effect.

  56. April 1, 2010 at 6:39 am

    Your perspective is interesting in that it is quite a contrast from the community of people that have tended to comment here.

    I have always said that smaller hospitals cannot provide the same level of service as bigger hospitals, and may not be able to handle a uterine rupture which as much speed and expertise as higher volume centers. A lot of people have argued with me that any hospital that is good enough to deliver a baby is good enough to host a VBAC. This is not something I have agreed with, but a lot of people feel this way. Personally I believe that is an idealistic idea separated from the reality of what it takes to deliver optimal care for VBACs. The sad thing is that people wanting VBACs in rural areas with no hospital access are turning to laboring at home, which is no doubt even more dangerous than laboring at an understaffed small hospital.

    I am reading your perspective to be that small centers are misrepresenting themselves as being able to handle VBACs when actually they are not. This is surprising to me, as my impression has been that small hospitals have been quite happy to not allow VBACs, based on liability concerns. In fact, this entire post was trying to address the fact that VBAC access has become limited because many hospitals have banned VBACs because of liability concerns. ACOG created a standard that should be met to provide VBACs, and these hospitals couldn’t meet that standard. The idea of a liability waiver consent was an attempt to address this issue – if women are willing to accept the risk of VBAC, perhaps they should not be able to sue if it doesn’t got their way.

    Your ideas on EMTALA are interesting as well. I do not think it is as black and white as you say. If a hospital does not offer VBACs, and the closest hospital is 300 miles away, is that hospital then required to transfer the patient? If so, who pays for this transfer, or the liability of the patient possibly delivering enroute?

    Here’s an example of this idea. Lets say a patient presents to the hospital with a ruptured ectopic pregnancy. In my center, I would transfuse this patient as needed and then do an operative laparoscopy, and likely the patient would be able to go home 12 hours after I operate. If this patient showed up at night to a small hospital, it is very possibl the GYN on call would have to do a laparotomy, as smaller centers are often not able to do laparoscopy on on an emergent basis, particularly at night. That patient would stay in hospital for 2-3 days and have a much longer recovery period than my patient.

    So if that patient shows up to that small hospital, is the small hospital required to transfer them to a tertiary center? After all, there is a center where a superior procedure could be performed. The answer of course is no – because they are able to provide adequate care for the patient. Maybe they can’t provide the cutting edge, but they can do enough to resolve the situation. As such, they are not required to transfer the patient out.

    The VBAC situation is not so different. A hospital that provides repeat cesarean is able to deal with a patient who has a prior section and is in labor. Perhaps they cannot do the VBAC that the patient desires, but they can provide a service that will resolve the situation and is within the standard of care. So should they then be responsible to transfer a patient who shows up wanting a VBAC? If so, should the system pay for that or should the patient pay for the transfer?

    Personally I think patients need to take responsibility for this. If they want a VBAC, they need to go to a place that offers them. If they show up to a non-offering hospital and transfer is medically appropriate and the distance is not excessively far, transfer might be an option. If transfer is unreasonable, then the patient will need to accept repeat C/S. The alternative is that they refuse repeat c/s _and_ refuse transfer, in which case they will knowningly labor in a hospital that admittedly cannot muster the forces to optimally deal with a uterine rupture.

  57. April 1, 2010 at 6:50 am

    >>“Some folks want the right to VBAC in any hospital and say any hospital that can birth a baby”

    >>>>They don’t.

    yes they do. Go read various natural birth blogs that comment on VBAC, or even in comment threads on this site. Lots of people think that any hospital should be able to safely handle a VBAC.

    >> But, it is up to the doc and hospital to tell them that and make arrangements for transfer.

    Docs should certainly tell a patient early in a pregnancy if they are not going to be able to provide a VBAC, if that patient desires one. Some folks have complained about some kind of perceived bait-and-switch on that, and if that is really going on it shouldn’t be.

  58. CountryMidwife
    April 2, 2010 at 1:26 pm

    The sad thing is that people wanting VBACs in rural areas with no hospital access are turning to laboring at home, which is no doubt even more dangerous than laboring at an understaffed small hospital

    I understand why you think this way, but being on the flip side of it I’m not sure I agree. I don’t see the advantage of a small community type hospital over a home or birth center birth with a qualified midwife. I’m rural and primarily attending births out of hospital (though not primary VBACs). Our back up hospital does not have OB, OR or anesthesia in house. Though emergent transfer is rare, I have every time arrived at the hospital with my patient sooner than the rest of the team (with IV, foley in, etc if appropriate). I think the “safety net” of a non tertiary hospital is highly over stated and overrated. Small hospitals offer little advantage (save epidurals for women who so choose) while also presenting risk (higher c/s and infection rates, etc) in comparison to home or birth center delivery. Problem being, of course we can’t have tertiary centers in every community – and hence the need for this discussion.

    • April 13, 2010 at 4:34 pm

      You may be right on this, but at least that rural hospital has some blood and a nurse that can setup a big IV and pour it in. Even if there isn’t an anesthesiologist around, the hospital has some kind of coverage arrangement that would get them reasonably quickly.

  59. April 9, 2010 at 9:58 am

    Wow…hot button topic here for sure!

    Here is a question that I have…

    Is there any evidence that women who have a uterine rupture are more likely to sue than women who have any other catastrophic event occur in a non-VBAC labor?

    I tend to think that there isn’t any evidence on this at all, that the question just hasn’t been thought about. We just live in a society where the paradigm is that if women don’t have a prior cesarean, they should attempt to birth vaginally, and the litigation that results from that is just accepted as part of obstetrics…but we haven’t shaken off the “once a cesarean, always a cesarean” paradigm.

    • April 13, 2010 at 4:32 pm

      Good question – not sure. Its tough to know as we do not have a huge database of every bad event that happens in labor. Lacking that denominator, its impossible to make accurate comparisons.

  60. Shamus
    April 11, 2010 at 4:30 am

    Quick question.

    Has anyone discussed the issue about informed refusal and choice for the physician. If the patient should be able to agree to VBAC or repeat CS then is it also not the choice of the doctor to either perform or not perform VBAC? What if the doctor has seen one and never wants to see one again and has decided not to perform them. If we are going to say that choice is imperative then that needs to apply to the physician as well.

    I was just wondering what people thought about this.

    • April 13, 2010 at 4:31 pm

      Shamus –

      A tough question. Before a physician has entered into a doctor-patient relationship, they are free to do or refuse to do anything they wish. Once they are in a doctor-patient relationship, they are legally bound to care for the patient. If a patient refuses repeat section, I do not believe the doctor could then summarily abandon the patient without a formal firing process and a period where they would still have to care for the patient. Typically this period is 30 days. If the issue came up after 36 weeks, I think the doctor would be legally obliged to attend the VBAC or to arrange coverage.

  61. ObGyn Rebel
    April 11, 2010 at 4:21 pm

    Heather, RN, MN :
    I’ve never understood why we just assume that every woman who VBAC’s is going to rupture her uterus?

    Heather, I appreciate your comment. I always assume the VBAC will be successful since they are the majority of the time. However, I just wanted to put this out there.

    The lay public ASSUMES that all uterine repairs after c-section are of equal and blue-ribbon quality. I hope this isn’t violating the unspoken ob/gyn code to say so, but I, for one, suspect that all repairs are NOT good enough to VBAC.

    I’ve seen quite a few C-sections now and the quality of the surgeon does not seem to correlate with the personality or charisma you see in prenatal clinic. Worse still, even in an academic medical center, double layer closure of the uterus is still not routine and very surgeon dependent.

    Furthermore, even as a very strong VBAC advocate, there are some repairs (e.g., sketchy repairs on paper-thin lower uterine segments) that I’ve thought to myself, “God, please don’t let her try to VBAC.” Food for thought….

  62. June 26, 2010 at 3:33 am

    Nicholas Fogelson :
    Thanks for the deep thought and commentary.
    >> It’s so insulting this attitude that women cannot educate themselves adequately about the risks and benefits of obstetrical interventions.
    The problem is not that women cannot educate themselves about the risks and benefits of interventions. The problem has been that there have been cases where babies have died after VBACs, done with full written and verbal consent, where the patient successfully argued in court that she really didn’t understand that the baby could die. This, even though the written consent clearly spells it out. A such, a formal written consent with legal backing would be useful, and in my opinion does not imply that women are incapable of understanding anything. What it implies is that the legal system is incapable of protecting physicians from lawsuits stemming from rare, unpredictable, and unavoidable complications.

    I still think the CURRENT attitude of some OBs is to simply make care decisions for the woman instead of letting her know she has options and giving her a straight answer about the risks and consequences. I think the current VBAC policies are just one example. I don’t think my OB did an episiotomy because he thought he was going to get sued (there was no rush and baby was doing fine), I think he just did it because he thought it was the best thing to do, for whatever reason, at the time and didn’t think I was qualified to make that call.

    I completely agree with you about almost all plaintiff’s attorneys and med mal cases. When I worked at a large law firm, I would occasionally get dragged into working on these cases (for the defense) and I hated it. They are always bad. Even if no one did anything wrong, the facts are always horrible. There is a patient or a family who is hurting, a doctor who is afraid to say sorry because he’s scared of being a sued, he gets sued because the family is angry at his response to whatever happened, the plaintiff’s attorney twists everything up and makes claims like inadequate consent, and no matter what the outcome, everyone loses. Even a family who wins a huge settlement is still left with whatever tragedy occurred and the realization that money didn’t fix it. And even a physician who successfully fights off a malpractice claim is left haunted by it and will most likely practice medicine differently from that point forward. It sucks. I have no solution.

  63. bobbie
    June 26, 2010 at 8:07 am

    <>

    Oh puh-leeze. You can summarize the causes of malpractice suit filing because you once worked a few cases for one side? I guess it should surprise no one that you think you can know all about ob/gyn — you have had female body for years!

    >> It’s so insulting this attitude that women cannot educate themselves adequately about the risks and benefits of obstetrical interventions

    A few simpletons in the patient female population are the very reason you get these suit based on inadequate consent. Women who seek VBAC are exclusively the type who are “self-educated”.

    Did you “educate yourself” on VBAC the same way you “educated” yourself on medmal? You are exactly the type of person, when the youknowwhat hits the fan, say ‘oh, you mean there was scads and scads more to educate myself about that I wasn’t even aware of!! You should have told me!!”

    I wonder how your “education” on plaintiff’s malpractice claims will change if you or your family becomes a victim.

    • June 27, 2010 at 3:30 am

      First of all, I wasn’t trying to “summarize the causes of malpractice suit filing” – I was simply making the comment that having been involved in some, I think they suck and I have no solution. I don’t think I could have made a more humble, less educated comment. The facts and the outcomes always suck, regardless of the cause or the verdict. That’s all.

      As for VBACs, I’ve never had a c-section, so I’ve never had a reason to educate myself on it. Patients give consent ALL THE TIME for procedures and treatments that are FAR more risky than VBACs, and are assumed to have the ability to understand the risks and benefits.

      And no, you’re wrong about me. You are “the type of person” who makes a world of assumptions about a person based on a comment on a blog post, which makes makes you look ignorant. My eldest daughter has a rare medical condition, and as a former researcher in healthcare (I have a microbiology degree and worked in research for 8 years before going to law school), I read every single peer reviewed journal article ever written on her condition. I took her to four experts across the country before deciding on a treatment, which we took her out of state for. I would never call myself an expert in dermatology just because I read some studies, but I would consider myself educated enough to make a difficult decision about her treatment. She had MAJOR complications – ended up in the PICU after one surgery that is usually performed on an outpatient basis. We understood the risks, we trusted her surgeon, she had a reaction that he has never seen his 30 years of practice for reasons none of us fully understand, and we get that, we didn’t sue.

      I don’t claim to “know all about obgyn” but I do claim to have a right to make decisions about my body. I know it’s CRAZY radical of me to want my doctor to say “hey I’m going to cut your vagina for no real reason” before doing so, the same way I would want a dentist to give me a heads up before pulling out a tooth. I guess if that makes me a certain “type of person” then that’s exactly the “type of person” I want to be.

  64. June 27, 2010 at 7:42 am

    One of the great things about this blog is how little aggression there has been in the comment threads. Unlike most blogs, trolling has been minimal. Blatant stuff has shown up from time to time, and I have deleted it.

    bobbie’s comment above is really close to what I would delete. He/She is attacking the person rather than the idea, which is shame. Its going to stay, but to folks that read this, let’s keep it civil.

  65. Sarah
    January 31, 2011 at 12:11 pm

    I truly believe all of this is about the fear of death. In an ideal world we would, as in the past, accept death as a part of life and not blame others, unless they actually used their hands, as do Physcians to cut out babies,or harm and kill their patients (There are those who actaully do become physcians to harm by the way, I’m not saying all!). I do not believe most MDs intentially harm women and babies. I do believe they are afraid though of in-action, taking all the tools of their trade as far as they can to say “we have done everything we could” this holds up in a court of law more then the ‘natural’ course of events most seek. It is a scary world, we do not have the capacity to teach everyone about their own bodies, nor do the parents who should be teaching their children about normal functions of our bodies and minds. They come in blindly expecting others to take care of them and when something goes wrong, whether induced by the circumstances or not, they want payback! I have attended many VBACs at home and no one was injured or damaged by their event. But I know the slight risk and educate about it, I educate about prevention, I suggest supplements that are good for softening of scar tissue as to allow proper strength and stretching to decrease the chances of tearing or that .01% of rupture. How on earth is a physcian going to spend enough time preparing and educating, finding the correct nutrients for that particualar person and stay with them at all times to monitor and give support? Not happening! In an ideal world this would decrease the need for a primary casarean birth to begin with! Money rules here, physcians do not have the time or money in most cases, to fight the mandatory liability issue, in most birth related cases, it is always the inaction or inappropriate action that they get sued for. I am not a hospital birth supporter for these reasons, I think all women and babies shoudl have a chance for real physiological birth and that does not happen in that environment. I am for women and babies, making healthy decisions for themselves as two human beings, not one. We forget about the babies so much in these debates. It comes down to liability and money, and control, not what is best for these mothers and babies! If a section is truly needed, as I have seen a few (literally a few, 3 out of approx 450 births)that were, then that is what hospitlas and physcians are for.

  66. August 12, 2014 at 10:05 am

    My brother recommended I might like this blog. He was totally right.
    This post actually made my day. You can not imagine simply how much time I had spent for this
    information! Thanks!

  67. August 20, 2014 at 7:03 pm

    It sorts the results of a search according to category, tags and comments.
    I only review the trustworthy internet guru products that I
    think is more reliable and promising. Many ‘newbie’ web entrepreneurs believe that you need
    a state of the art website, KILLER graphic design, your own products and so much more.

  68. September 9, 2014 at 7:42 am

    My husband and I drove to Montreal from up north, which is approximately an hour and ten minutes in total.
    If you do not succeed the very first time then do not be concerned, you just
    need to keep coming back towards the web site inside
    the next several weeks, if the company is really a larger 1 I’m certain there will be job delivers on their web site soon.
    You can order the products from Amazon in the following links: ‘Call of Duty:
    Ghosts,’ PS4 and Xbox One.

  69. September 19, 2014 at 12:16 am

    Their findings are very accurate and have immensely helped businesses strategize their product and service launches.

    So she continued asking how it was like being on the site and if such
    negative Afroromance reviews hold any water.
    Most Web Designs takes too long minutes before it fully opens.

  70. September 20, 2014 at 3:19 pm

    I’d like to find out more? I’d love to find out more details.,

    http://tinyurl.com/o7thys8

  71. video lucu indonesia
    September 25, 2014 at 9:42 am

    I enjoy what you guys tend to be up too. This kind of clever work and reporting!
    Keep up the awesome works guys I’ve included you guys to blogroll., http://goo.gl/Fb8v2A

  72. October 1, 2014 at 3:48 pm

    Wow! In the end I got a webpage from where I be able to in fact obtain useful
    facts regarding my study and knowledge., funniest videos ever

  73. October 5, 2014 at 9:09 pm

    This is very interesting, You’re a very skilled blogger.
    I’ve joined your feed and look forward to seeking more of your excellent
    post. Also, I’ve shared your site in my social networks!

  74. October 10, 2014 at 8:06 am

    An oversized pump may cause noise in your filter valve due to excessive flow.
    The show’s focus is on party-planning, so her design work
    will involve mostly rearranging and inexpensive updates ‘ a little Botox rather than a full facelift, she explains in a statement.
    For a November 8 evening event in Los Angeles, he and the Grammy Museum’s Executive Director, Bob Santelli, discuss his
    career and the process of writing scores for films and television.

  1. March 14, 2010 at 6:10 am
  2. March 16, 2010 at 6:59 am
  3. March 24, 2010 at 4:40 am
  4. March 29, 2010 at 1:19 pm

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 105 other followers

%d bloggers like this: