Recent Empirical Research Suggests Rise in Cesarean Section Rates Not Caused by Malpractice Liability Pressure
Photo by Salimfadhley via Flickr
In my recent post on the NIH’s consensus development conference on vaginal birth after cesarean, I noted that one of the recommendations coming out of the conference was that “medico-legal” reforms “be developed, implemented, and evaluated” to determine their effect on cesarean section rates. Recent empirical research indicates that such reforms are likely to have little impact.
Prior work suggested that medico-legal reforms could play a significant, if supporting, role in efforts to reduce the number of unnecessary cesarean sections. For example, the authors of a 2006 study published in Health Affairs analyzed the disturbingly large disparities in cesarean rates from county to county and concluded that, for normal weight births, 14.5 percent of the variance in rates was attributable to variance in malpractice premiums and the number and size of malpractice payouts. Another study published in the journal Medical Care in 2009 found, among other things, a small negative association between cesarean section rates and two types of tort reforms — caps on noneconomic damages and pre-trial screening panels.
In an article in the latest volume of American Law and Economics Review, Influence and Deterrence: How Obstetricians Respond to Litigation Against Themselves and Their Colleagues, Northwestern University researchers David Dranove and Yasutora Watanabe move beyond “macro measures of the malpractice environment” and “tak[e] a micro look at the data, examining on a quarterly basis how physicians respond to claims lodged against themselves and their immediate colleagues.” Using two rich data sets from Florida, one of all hospital births between 1994-2000 and another of every resolved malpractice claim from that state from 1979-2003, Dranove and Watanabe generate answers to three provocative questions: Do obstetricians perform proportionally more cesarean sections after they have been sued? Do their cesarean section rates increase in the wake of suits against other obstetricians at their hospital? What about when the number of lawsuits filed against non-obstetricians in their county goes up? The answer to the first two questions is yes, but the “effects are both small in magnitude and very short-lived.” Moreover, the effect disappears after an obstetrician has been sued once; subsequent suits have no effect. The answer to the third question is no.
Dranove and Watanabe theorize that “[t]he fact that [the effect of a physician's own history] is short-lived and limited to obstetricians with no previous contacts may indicate that obstetricians overreact to their first contact. It is possible, for example, that they rapidly discover that the litigation process is neither costly nor particularly painful. For example, physicians rarely make a financial payment to the plaintiff and do not appear to lose any income as a result of being sued (Danzon et al. 1990; Zeiler et al., 2008).” They conclude that “[w]hatever has caused the pronounced upswing in [c]esareans, it is not due to the influence of individual, hospital-wide, or regional contacts with the legal system.” This, of course, causes one to wonder what has caused the “pronounced upswing;” in a subsequent post, I will look at other possible explanations, including reasons related to health care finance and organization.
Posts from Health Reform Watch have been cited by media sources throughout the country, including The New York Times, Washington Post, L.A. Times, Kaiser Health News, The Health Care Blog, NPR's Planet Money Blog, Duke Univ. Med. Center News, American Health Line Alerts, BusinessWeek.com, Concurring Opinions, Balkinization, The New England Journal of Medicine, Harvard's Nieman Foundation for Journalism, Las Vegas Sun, Maggie Mahar, Ezra Klein, Tom Geoghegan, and the official homepage of the Office of the Democratic Majority Leader of the House of Representatives, Steny Hoyer.
One theory that has been suggested in response to this is that the cesarean rate is already so high due to malpractice concerns that having a “contact” as you put it with malpractice really can’t affect the rate very much.
I think that the link between cesarean rates and malpractice is probably strong…but it is more about obstetrician PERCEPTION of malpractice risk more than actual risk. Their perception is that if they get sued…they will be out of business. In fact–one of the panelists at the NIH conference even stated that obstetricians do get put out of business by malpractice suits. So they practice defensively. Getting sued once and “surviving” does not alleviate their fears–they still fear that the next suit will do them in.
I think that it is important to get some real numbers out there. Doctors need to know what the average pay out is for malpractice suits, how much of that is covered by malpractice insurance, how much malpractice rates go up after a suit, and how many doctors are really being put out of practice by malpractice suits. Until such data is readily available…the obstetricians are practicing under a cloud of fear.