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.