There is a disconnect
ACOG’s
claim that the civil justice
system operates as a
free-for-all
and the due process that
actuallyoccursin
between
the
courtr oom.
Using ACOG’s criteria to frustrate children’s valid legal rights also
frustrates what can be effective risk-management e orts. What might be a
win-win situation (fairly compensating
the child and using the information to
prevent future similar harm) can become
a lose-lose situation.
Skewed Statistics
Statistics have also been used—wrongly—
to defend negligent obstetrical care. The
perinatal mortality rate (PMR) represents deaths shortly before, during, and
shortly after birth. In the 1960s, before
the introduction of electronic fetal monitoring and other advances such as the
newborn intensive care unit, statistics
revealed that the PMR was high (37 per
1,000 births).17
The statistical incidence of cerebral palsy was comparatively much
lower (about 2 to 4 per 1,000 births).18
Advances in technology produced a dramatic decline in the PMR (of almost 30
per 1,000 births). If only five of those
“saved” children survived with cerebral palsy, the cerebral palsy rate would
double. But the rate did not rise at all.
ACOG maintains that the absence
of significant decline in the cerebral
palsy rate proves that cerebral palsy is
not preventable.19 But this represents a
misuse of the statistics. What they show
is that far fewer children were injured
during labor and birth, fatally and otherwise, proving that good care using new
technology can make a di erence.20
Statistics have also been used to
allegedly prove that cerebral palsy is
not “predictive” and therefore cannot
be prevented by using electronic fetal
monitoring. But this argument ignores
the physician’s duty of care to his or her
patient. Injury from being an occupant of
a moving vehicle is not statistically predictive. For example, even though there
is less than a 0.01 percent chance that
each occupant of a car will be injured in
an auto collision, each driver must place
a child in a safety seat and must use due
care to avoid a collision.
Complications associated with risk
factors sometimes lead to harm. Doctors
use risk factors to anticipate and avoid
harm. But attributing harm to risk factors
rather than specific identifiable complications and stating that cerebral palsy
from labor is not a predictive outcome
can result in erroneous conclusions.
If stresses during the birth process are
excessive, they will cause harm. Disabling
brain injury that produces cerebral palsy
can be anticipated, and excessive stresses
that can produce such injury can be
avoided or limited in individual cases.
Ambiguous Advice
Thirty years ago, the American Society of
Anesthesiologists (ASA) used information from closed medical liability cases
to adopt mandatory minimum standards.
As a result, the ASA made the administration of anesthesia much safer, and
anesthesiologists dramatically reduced
their liability claims and premiums.21
In 2008, a group of obstetricians
published a study in which they used
closed perinatal liability cases to devise
and implement a new, “unique” patient
safety protocol involving an obstetrical service delivering 220,000 children
each year. They stated that their perinatal safety program rejected the use of
“purposefully ambiguous” guidelines,
which they recognized as a “traditional”
approach that helps a liability defense.
They used mandatory, unambiguous
guidelines coupled with an interactive
teaching of electronic fetal monitoring,
and they reported fewer bad outcomes,
a 50 percent reduction in liability cases,
and a “dramatic” decrease in liability
costs.22
There is a clear parallel between what
the ASA did 30 years ago—using liability
claims to make care safer—and what this
obstetrical group accomplished.
In contrast, ACOG’s most recent labor
management bulletin (issued in July
2009) is purposefully ambiguous.23 For
example, the committee formulating the
guidelines identified certain electronic
fetal monitoring information as normal,
certain information as abnormal, and certain information as “intermediate.” One
member of the committee noted a significant concern with this wording, “fearing
its potential legal implications.”24
This ambiguity reflects ACOG’s preoccupation with how the words will be used
in the courtroom. Instead, the wording
should state unambiguously that issues
