Expecting Perfection: Managing Obstetric Liability Risks

In this episode of the MagMutual podcast, Steve Adubato, PhD, speaks with obstetrician/gynecologist Alan Joffe, MD, about the top loss drivers and most common causes of malpractice claims against OB/GYNs. Dr. Joffe describes the expectation of perfection when it comes to delivering babies and the impact malpractice lawsuits have on practicing physicians. Dr. Joffe walks listeners through a real case study on shoulder dystocia. He also discusses best practices for performing a Cesarean section and provides specific strategies on how to minimize the associated risks.

Release Date: 8/30/2023; Recorded Date: 4/27/2023

Podcast Transcript

ADUBATO:  Hi everyone, Steve Adubato. Welcome to the MagMutual podcast. This is a podcast that deals with a range of healthcare topics and issues and trends. Our goal is to ensure a safer practice for all MagMutual physicians. 

Today the podcast welcomes Dr. Alan Joffe, an obstetrician/gynecologist in Atlanta, Georgia, and also a member of the medical faculty at MagMutual Insurance Company. Dr. Joffe, great to have you with us on the podcast. 

JOFFE:  Thank you so much. 

ADUBATO:  Doctor, tell us a little bit about your background in becoming an OB/GYN. 

JOFFE:  Well, I guess we should start at the beginning. I went to the University of Maryland Medical School and then to Johns Hopkins to train in OB/GYN. From there, I moved after the residency program was complete, to the state of Georgia, and began teaching at a local teaching hospital and began a private practice. Over the years, the private practice grew, and eventually I became chairman of the department of Northside Hospital, which is one of the largest delivery hospitals in the United States of America, so that is how my career developed. During that process, I got involved with MagMutual with an interest in minimizing liability risks with the concept that we physicians can do a better job and have better outcomes. 

ADUBATO:  Let me ask you, given your role on the medical faculty at MagMutual and your interest in, as you just said, helping to minimize liability risk for all practicing physicians, what's the likelihood of an obstetrician actually being sued during their career? 

JOFFE:  Well, if you look at a study published by the New England Journal of Medicine, 75% of our colleagues and obstetricians will face a malpractice claim during their career. If you're sitting in a doctor's lounge, we would say 100% of us have been sued, so it really depends upon whether you're practicing obstetrics along with gynecology, but that's a pretty high number, 75% in a career.

ADUBATO:  Let me ask you, you talk about those statistics, which, for me as a non-physician, I did not realize it was that high. What I'm curious about is: what is your view on the impact of these lawsuits on practicing physicians?

JOFFE:  Well, for certain physicians take it personally. The emotional stress that's created by litigation is intense. I've only known a few physicians who could look at a lawsuit as the price of doing business. For us, we are holding ourselves to 100% perfection. Even though if you understand biology, that's not possible, we are still trying to achieve that perfection in every single caregiving circumstance we have. The stress of a lawsuit leads to all sorts of self-doubt, depression, we've had colleagues commit suicide, and from a general perspective, it can cause you to lose your license and certainly lose credibility in the medical community, as sometimes these things become public. 

ADUBATO:  Dr. Joffe, your perspective is so important right now and I'm sure that so many listening to the MagMutual podcast are appreciating and understanding and empathizing with what you're saying. What would you say are the most common causes of malpractice claims against OB-GYNs? 

JOFFE:  We looked at this at MagMutual because we, in fact, have the data, and it is clear that there are six drivers. They include shoulder dystocia, delay in performance of a Cesarean section, uterine injury during hysterectomy, bowel perforation during GYN surgery, medication error and postpartum hemorrhage.

ADUBATO:  Why are there so many malpractice claims associated with these types of injuries?

JOFFE:  That is a great question. All of your questions so far have been interesting, but that is the key question: why? What we can say is that patients expect perfection, and when we're dealing with delivering babies, it can be a lifetime injury. There may be a permanent injury that lasts a lifetime or there can be an impact on the ability of your child to function or to be appropriately educated. These are effects that don't go away. It is both costly for the patients to help manage their newborns - not just financially costly, but also emotionally costly. It becomes a very big deal to them. As obstetricians, we believe we are scientists as well, and we recognize that there is no such thing as perfection. No one can have 100% guarantees for outcomes. When the outcome is not how a patient and their family feel it should be, they turn to malpractice claims to try to find some resolution.

ADUBATO:  Okay, talk to everyone listening to the MagMutual podcast right now about some of the risk factors for shoulder dystocia that OBs should be aware of throughout a patient's pregnancy. 

JOFFE:  Okay, so there are outcomes with shoulder dystocia that are very concerning.  Shoulder dystocia is when one or both of the shoulders become stuck behind the mother's pubic bone after the vertex has been delivered. This can lead to a variety of neonatal injuries, brachial plexus being the most common, sometimes the clavicle fractures, as well as significant levels of fetal asphyxia.

Before I go through the various risk factors, I want to share with you, if you don’t mind, a typical clinical story of what happens to physicians and patients. The perfect example is a 22-year-old patient having her first child. This is an actual event that took place. She arrived in labor and delivery at 36 weeks pregnant, having a routine uneventful pregnancy, a 38-pound weight gain, negative diabetes screen, normal ultrasounds and estimated fetal weight of 6 pounds just one week before she actually delivered, and when she arrived she's already 4 cm in labor with ruptured membranes. She progresses spontaneously. There is nothing else done with this patient except observing her and monitoring her as she labors. She pushes the baby out with no problem and the shoulder gets stuck.

At that point, a McRoberts maneuver was done and downward traction was filmed, unfortunately, and, therefore, even though the physician was certain that there was no excess traction, this was indefensible, the baby came out only 6 pounds 2 ounces and had a brachial plexus injury of the C6-C5. That is as benign a possible presentation of pregnancy, of labor and delivery, and in that particular situation, which is why all obstetricians are on guard for this on every vaginal delivery, there were no, of any kind for that matter, warning signs. You asked, “What are the pre-labor assessments? What do we do?” Well we do know that shoulder dystocia is associated if a patient has had a previous delivery with shoulder dystocia. If you've had one shoulder dystocia, there is an increased risk of having another.  In those cases, most obstetricians would lean towards doing a Cesarean section. In the case I presented to you, it was a first pregnancy so no way to have previous history.

Gestational diabetes is another risk factor. Gestational diabetes babies grow uniformly heavier. Their body mass is bigger. There's more distribution of body fat in the shoulders, chest and abdominal area, making it more difficult for them to deliver. In this case, there was no diabetes history, and the screen was negative. Maternal obesity is also associated.  No obesity here, and an infant that is large size, however this baby was 6 pounds 2 ounces, so it shows the conundrum we deal with in shoulder dystocia.  

Now, on the other hand, Steve, if a patient presents to you with maternal diabetes with an estimated fetal weight over 9 pounds, with a large maternal weight and body habitus with a previous history of a shoulder dystocia, then it is a good idea to have a maternal fetal medicine specialist involved in the patient's management antenatally, and then there's some strong consideration needed to be made as to whether this would be a good idea to attempt a vaginal delivery.

The last piece of this is, is that just like in the case that I presented, if you are presented with a shoulder dystocia delivery, this should not be the very first time that that OB-GYN team, and I'm talking nurses as well as scribes and others, see this. There should be what we call shoulder dystocia drills that are done by the entire team in Labor and Delivery. A scribe with a shoulder dystocia checklist should be in the room during the process to consistently and carefully document the various events. The algorithms that we do should include sim training, and there are very appropriate sim training models that are available that can help the physician learn what it feels like to apply appropriate practice technique and force application. Under those circumstances, you can at least do the best you can to minimize any harm to this newborn and protect yourself from the standpoint of documenting, and documenting is hugely important, the events that took place in the delivery room.  

ADUBATO:  Doctor, first of all, thank you for laying out in detail with specificity not only the situation that you described, but also some of the better or best practices that obstetricians should be focusing on to potentially avoid the outcome that we're trying to avoid here. The last question for you is on C-sections. So you mentioned C-section as an area where there's real risk involved in delivering babies, and the question becomes: What are some of the best practices in making the best decision around whether to perform a C-section or not, for your colleagues? 

JOFFE:  The term C-section, everyone is consistently aware of, which is an abdominal delivery. A significant number of Cesarean sections are done in a repeated fashion after the previous Cesarean section. What we're talking about here is the timing of a Cesarean section, whether it be a repeat or a primary, and the decision to perform a Cesarean section is very complex. It has to take into consideration multiple factors, including mom's medical history, as we just previously discussed, with potentially diabetes, the fetal status during the antenatal phase, whether there has been electronic fetal monitoring, MFM participation, recent ultrasounds, and then during the labor process, we watch both the fetal status and the labor progress, as well as maternal indications. There may be issues that pop up for mom that prevents her from progressing in labor. So there are a whole host of possibilities. I couldn't possibly give every possible indication for a Cesarean section. There are whole textbooks written on that. But how do we reduce the risk? How do we manage the dangers associated with Cesarean section and the litigation that comes from that? One of the most common problems has to do with the interpretation of fetal heart tracings. For those who may not be medical, there is a machine that we have available that gently straps around mom's waist.

ADUBATO:  Okay. 

JOFFE:  What happens is that it can follow both the contraction pattern and the electrocardiogram of the baby, and those two are correlated together. As you watch them on the fetal tracing, there are categories defined by the American College of OB-GYN, categories 1, 2 and 3. Of course category 1 is not concerning in any way. Category 2 should begin to open your eyes, okay. Category 2 says, well we're looking at the baby's heart rate and there's not a lot of accelerations or none at all, and variability, which is key. There is minimal or absent variability. These things suggest that baby is beginning to be unhappy intrauterine.  That needs to be watched very, very carefully. There are all kinds of tools you can use during the decision-making process. You can use scalp stimulation and see how the baby reacts.  You can put a scalp electrode or intrauterine pressure catheter to follow more directly the cardiogram of the baby, or follow more directly the intrauterine pressure and contractions. 

As we look at this, the timing is key, and with timing it is always a good idea to have multiple eyes looking at these tracings. Not just mom and partner who are clearly watching those tracings, but nurses, doctors and other colleagues. If you have any question, you can get a second opinion. Then in the background of all of this, every physician understands that you can't do a Cesarean section without anesthesia. If you were stuck in a circumstance where you have to use local to try to do the operation, it takes an incredibly long period of time and is not very helpful. So we know that the standard for a delivery by Cesarean section in hospitals that do deliveries is 30 minutes from declaring a Cesarean section to accomplishing it. We need to be sure that the labor and delivery units we are in have available anesthesia, have staff that's prepared to do this, and the capability of going from a vaginally intended delivery to Cesarean section.  

ADUBATO:  Dr. Joffe, I cannot thank you enough for laying this out in detail. Specific, concrete, helpful. Dr. Alan Joffe, I want to thank you so much for joining us. We appreciate it. 

JOFFE:  You're most welcome.

ADUBATO:  On behalf of the MagMutual team, this is Steve Adubato. Thank you so much for listening to the MagMutual podcast. Catch us next time.