New York City’s biggest public provider of prenatal care to indigent women, the Maternity, Infant Care and Family Planning Project, is now turning away pregnant women who need help. The problem is not lack of money, but lack of physicians.
At last count, one of every six New York obstetricians had stopped delivering babies. About half the obstetrics residents trained here now leave the state to open practices elsewhere. For the moment, the crisis is worst upstate and among the uninsured. But it is only a matter of time, specialists predict, before even the privately insured Manhattan mother has a hard time finding someone to deliver her baby. “We have a system that really is about to fracture,” warns Mary Armao McCarthy, executive director of the New York State office of the American College of Obstetricians and Gynecologists (ACOG).
It is not hard to figure out why. New York obstetricians get sued—a lot. Eight of ten have been hit with malpractice lawsuits at least once, and at current rates each can look forward to defending about eight suits over a career. “Everybody I know has been sued or is in the process of going through suits,” says Stephen Gettinger, a Long Island gynecologist and co-chairman of the New York ACOG’s committee on professional liability.
Statewide, liability insurance costs obstetricians more than half as much as their entire net income. In New York City and Long Island, they shell out more than $100,000 a year for it. Of course they pass these costs on to patients as higher fees and health insurance premiums. The annual cost of insuring New York hospitals and doctors against lawsuits comes to $1 billion.
The litigation trends are national in scope, but New York, known for aggressive lawyers and high damage awards, fares especially badly. The average obstetrics malpractice verdict in New York, at $643,000, is three times the national average. The reason is not that New York doctors are less careful than those elsewhere. New York City offers some of the world’s best medical care, yet its insurance rates are five times higher than those of Arkansas. The problem is New York’s overheated legal system.
Why obstetricians in particular? One reason is the intensity of litigation over infant brain damage. Varying degrees of neurological handicap, most notably cerebral palsy, occur in 5 to 10 percent of newborns. Lawsuits over such conditions are especially widespread in New York, accounting for 40 percent of claims against obstetricians in 1987, compared with 31 percent nationwide. One major insurer has reported that payouts on claims for brain-damaged babies accounted for more than half its payouts on ob/gyn coverage in New York. The lawsuits typically blame cerebral palsy or similar conditions on such delivery-related events as fetal asphyxia (oxygen deprivation during labor). “The allegation always is that the doctor should have done a cesarean section, or should have done one sooner,” says Gettinger.
The National Institutes of Medicine, however, says epidemiological evidence and massive clinical trials cast “serious doubt” on the long-held assumption that obstetric errors are a leading cause of infant brain damage. One major study found that “no foreseeable intervention is likely to prevent a large portion of cerebral palsy” and that the results “suggest a relatively small role for factors of labor and delivery.” Karin Nelson, a highly regarded pediatric neurologist at the National Institutes of Health, has found that at most 6 percent of infant brain damage cases might be caused by birth events. Scientists, let alone juries, have great difficulty determining which few percent those are. “It is abundantly clear,” a National Institutes of Medicine study points out, “that medical malpractice claims are not confined to the worst practitioners or the worst health care institutions.”
Most of the lawsuits fail. A recent Harvard University study found that only one of every eight New York babies collects compensation when a malpractice suit is brought. But every so often jurors “throw up their hands and say, ’We don’t know why this baby is impaired, but this baby needs help,’” says McCarthy. When that happens multi-million dollar awards are not uncommon. Because jury awards are so random, insurance companies are under pressure to settle any case where the baby’s condition is grave.
That adds up to can’t-miss economics for the trial lawyers, who take as much as 40 percent of any cash award in contingency fees, along with another hefty chunk for expenses. “All it takes to sue a physician is $75 and a letter from another doctor,” observes Dr. Harvey Rutstein. Rutstein stopped practicing in 1982, shortly after all charges against him were dropped in a $17 million lawsuit brought by the family of a six-year-old he had delivered. The experience, he said, left him “with a huge psychological scar that will never heal.” “If somebody sued you and claimed you were incompetent, how would you feel?” asks Gettinger.
The fighting can drag on for years. In New York, lawyers can file cases up to 10 years (previously 21 years) after a birth. The suits take another 3.2 years on average to resolve; much longer than the national average of 1.9 years. Practicing obstetrician Albert Ellman has one suit that is still going after 10 years. One of his partners was hit with seven lawsuits, and although none were settled against him, he quit obstetrics at age 46.
Hardest hit have been women upstate where obstetrics is often part of a diverse family practice. Family physicians who now and then used to deliver a baby find they cannot cover the added insurance costs. A 1987 survey found 37 percent of New York obstetrician/gynecologists had curtailed their obstetrics practices. Upstate obstetrics groups report extreme difficulty recruiting new doctors. McCarthy says one private Albany practice has dropped from five to three partners because it has been unable to fill obstetric vacancies for the past four years. Three residents turned down offers of partnership, citing New York’s liability climate. A group practice in the Geneva area has been trying to recruit an obstetrician for six years without success. Pregnant women in the Albany suburb of Delmar will have to go elsewhere for obstetric care starting July 1, when a local five-doctor practice quits delivering babies. Mothers-to-be in Newburgh last year could choose among eleven obstetricians; this year, only six are still practicing.
As obstetrics care dries up in rural areas, many women are traveling to large metropolitan and university hospitals. In rural Wayne County, where two physicians gave up their practices over the past two years, many women now travel to Rochester or Syracuse for care. Yet many city hospitals are sophisticated facilities geared for high-risk pregnancies. Their specialized mission, says McCarthy, “is hampered when they are flooded with routine cases.”
Poor women also lose out. More than a quarter of New York’s obstetricians have also reduced or eliminated services to “high-risk” women, and doctors often regard Medicaid payment as a sign of high-risk pregnancy. Infants of poor women generally are more prone to low birth weight and neurological damage. In inner cities, says Ellman, more women start out as drug abusers, smokers, or alcoholics, and then delay seeking prenatal care. “If they get into the system late, there’s already a problem with that baby.”
Another reason obstetricians avoid poor women is that Medicaid payments barely cover a physicians’ out-of-pocket expenses, much less pay for his time. The cost of malpractice insurance all by itself—averaging $800 per delivery statewide, and $1,000 in New York City and Long Island—nearly equals New York’s Medicaid reimbursement rate of $1,037 per birth. With liability risks as high as they are, hospital wards and clinics serving the poor are having increasing difficulty getting physicians to do volunteer care, says Solan Chao, professor of clinical ob/gyn at Cornell and former ob/gyn director at Harlem Hospital. More of these women are now getting inadequate prenatal care, he says, and commonly show up in emergency rooms for deliveries.
Middle-class women with abnormal pregnancies may find that they too have a hard time locating an obstetrician willing to deliver their child. And, thanks to the liability climate, women today are much more likely to endure cesarean sections. Nationwide, one in every four deliveries is a cesarean section, up from just one out of 20 two decades ago. If there is any possibility a woman needs a cesarean, says Gettinger, many physicians now “do it, for fear of litigation if you don’t.”
Ironically, at most 40 cents of every dollar paid in liability insurance premiums actually winds up in the hands of suffering families. A few families receive millions, most nothing. Most of the money goes to legal fees and expenses.
Trial lawyers respond that insurance rates look as if they have peaked for the moment. If so, it is at extremely high levels: Premiums rose 646 percent in New York from 1975 to 1986. Physicians have begun pushing for a no-fault system that would compensate impaired infants regardless of negligence, but with limits on “pain and suffering” awards. According to one consulting study, if cases of brain damage were removed from the tort system, the expenses of all severely impaired children could be paid at just 40 percent of the current cost, with more than 10 times as many infants benefiting from the system. Backers argue that the new proposals would remedy the limitations that have impaired the no-fault obstetrics malpractice schemes that have been tried in a few other states. State health commissioner David Axelrod has lent some support to the idea, but plaintiffs’ lawyers have been adept at blocking reform in the past and could do so again.