Document Everything: The Best Solution in the Case of a Bad Outcome
A common response to liability anxiety of maternity providers—nurses, midwives, and physicians—is a heightened focus on documentation. Documentation becomes a way for maternity providers to demonstrate that they are providing adequate care; they have learned that lack of documentation may be used in a malpractice claim to suggest that a bad outcome was due to medical error. Maternity providers must constantly document that they did the right thing. If something isn’t documented, it’s as good as not done. Especially because of the unpredictable nature of many adverse obstetrical outcomes, a focus on documentation of every labor and every birth becomes almost obsessive among providers. They don’t know which labor will end badly. This means every case has to be well documented. Below are two telling examples of how maternity providers use increased vigilance in documentation to avert liability threats:
I think about malpractice with every single patient I encounter, . . . and the doctor who doesn’t is asking for trouble. . . . Every phone call, every office visit, every hospital encounter—I think about malpractice. . . . Every time I write a note about a phone call, about an office visit, or about something else in the hospital, I think, “How will this look in court?” (Physician Philip Burgin)
I’m always thinking, “Am I going to be able to stand up in court with what I’m writing? . . . Is this going to pass muster if I’m on the stand?” You always have to keep that in mind as you’re doing your documentation. (Nurse April Colman)
Nurses face a particular burden of documentation because unlike most physicians—who are typically self-employed or employed by obstetrical practices—nurses are almost always employed by hospitals, and hospitals provide malpractice insurance for their employees. The hitch, however, is that hospitals will not cover a nurse in a malpractice claim if she did not document that protocols were followed. In fact, consistently breaking protocols is a cause for termination of employment. As nurse Michele Saxton tells me, “If you’re not keeping up on your reading and you’re not up on your standards of care and you don’t know the protocols, you’ll get yourself in trouble. They won’t protect you if you didn’t follow those procedural policies.” Thus nurses become the “enforcers” of protocols; the burden of “compliance” is placed on the least-powerful professional actors, a common practice in organizations. This burden was a common concern of nurses. Some may be surprised to hear that most nurses with whom I spoke are very critical of the way maternity care is being delivered, with a particular scorn toward interventions, such as routine inductions, use of Pitocin for labor acceleration, and, especially, nonmedically indicated c-sections. I think this would especially surprise many midwives, who often have a somewhat cynical view of nurses. Nurses are structurally placed in a situation where they must enforce protocols and document that those protocols have been followed.
Excessive documentation becomes a common practice, and this imperative is spread throughout the profession in conferences and workshops that focus on malpractice prevention. These conferences and workshops almost inevitably emphasize the importance of documentation. Doctor Burgin follows up our interview with an e-mail message about a conference that teaches the importance of documentation to prevent liability:
I thought it might interest you to know that I am going to a full-day seminar entitled: “Advanced Fetal Monitoring 2007 and Legal Implications.” There’s no mistaking what this course is about. One of the lectures is titled: “Monitoring for Asphyxia: What You Need to Know and Document.” The reality of the event is the same, but how you document it (and therefore how it’s presented to a jury) is what counts. I think about law all day long.
Conferences spread documentation as the answer to liability threat and also perpetuate a focus on law among maternity providers.
Nurses and midwives attend the same type of conference presentations on malpractice prevention, as this interview excerpt from labor and delivery nurse Margie Napolitano suggests: “Definitely in the past five years or so, it’s become a lot more scary for nurses and doctors because of the lawsuits and the legal issues. And a lot of conferences are focused on legal issues and documentation and all that.” Midwives also discuss these types of conferences and presentations; for example, midwife Rosalie Batten describes how “in [university] teaching hospitals we have a risk reduction program. . . . We have to do this continuing-ed piece specifically for the insurance company for the risk-reduction program. . . . So we are constantly being bombarded with, ‘This is the best legal defense.’”
C-Sections: They’re Just Less Risky for Us
One can see how, put in such a position, maternity providers may focus too much on how attorneys will perceive their actions. For example, physician Philip Burgin tells me, “[I think], ‘This wouldn’t have been a shoulder dystocia if you hadn’t delivered that head.’ Because the question posed to a doctor [is], ‘If you’d done a c-section, would this baby be paralyzed now?’ I hear lawyers talking in my head all the time.” It is clear that Doctor Burgin thinks about liability and how attorneys will interpret his actions constantly, likely obsessively.
I heard tales of maternity providers’ observing deviations from a normal labor and dwelling on similarities to previous bad outcomes, another defensive practice. This tendency is described well by midwife Crystal Hereford: “I can just think of so many physicians, [when] I’d have somebody in labor, . . . [the] physician saying, ‘She has twenty minutes more, and I’m doing the c-section, because all I can think about is that last bad outcome I had.’”
Imagining bad outcomes and lawyers talking in their heads is just a short step to intervening any time labor is not going according to plan. As physician Leticia Stites tells me, “That’s where the scariness comes in. That it can be no fault of your own, an act of God, or just a spontaneous event, and you still get sued, and you still lose. So, here you have no control over that situation and . . . it definitely leads to a higher c-section rate where the outcome is immediate, and it’s controlled, and no one can blame you for it.” Similarly, physician Philip Burgin said, “I think if we do more c-sections it is going to result in [fewer] lawsuits. Not because there will be less difficult babies. I think we’re still going to have cerebral palsy because no one knows what causes it. But because if you do a c-section you’ve done all you can do. Now the only question is did you do it early enough.”
This easing into c-sections as a solution to liability threats becomes more apparent after a maternity provider is sued for malpractice. The threshold to move to a surgical delivery slips lower and lower. Many physicians reported to me that after they had been sued they began to jump more quickly to performing a c-section, another example of Friedrich’s rule of anticipated action. They are performing c-sections because they have learned that doing so may prevent a malpractice lawsuit. The following two interview excerpts illustrate this:
It became more personal when I was sued. . . . There was particularly one case . . . I don’t know if the child would have been OK or not. But that was the allegation—that a c-section would have helped. . . . After that my threshold became much lower. Although probably 95, 99 percent of the patients with that same situation would have been OK, I kept thinking to myself, “OK, for that one percent, it’s such a catastrophic outcome for the child, for the parents, and then for me, not only because I care for the patient, but then going through the whole process of a suit.” . . . Nobody really wants to take that chance. And so you don’t. (Physician Lois Timberlake)
I have been [what] I’ll call the victim of medical malpractice lawsuits, and with that experience and also . . . now paying over $120,000 a year for malpractice premiums, I’ve realized that there’s a huge implication of our legal system on why the cesarean section rates are going up. And, I think, if I were to move tomorrow to Montreal [Canada] and practice medicine, my cesarean section rate would immediately go down because I would not be set up in the same manner of really intimidation by what’s happening out there. (Physician Robert Hinson)
Nurses also see physicians jumping quickly to c-sections, especially after a physician has been involved in a malpractice suit. Nurse Amanda Barnett tells me:
You watch how the physicians are practicing now, and because of malpractice and things that have happened in our own state. . . . Doctors [who] I have worked with for fourteen years, who we call the men and women with “all the feel,” they would watch a strip [with] variables and decels, and they’d [say], “Let’s try this, let’s try that—change position, use amnioinfusion, give herb tea,” whatever. . . . Let’s just say there were five things that you could do when a strip looked bad. Now they are trying one or two things, and if it’s not immediately better, we go down the hall for a c-section.
Perhaps the most shocking story I heard comes from physician Joe Haley, the mild-mannered, friendly obstetrician who bought me coffee. He lowers his eyes and speaks quietly when he says, “I call my wife when I’m hanging out in labor and delivery, and I say, ‘Oh, the strip looks like this,’ and she says, ‘Just do a section.’ [I feel threatened], and in a serious way, because . . . I mean, she’s not a doctor. But you really are vulnerable, and there’s really no protection.” This is perhaps the most telling example of the fear maternity providers face in modern maternity care. Asking one’s nonphysician spouse for advice on how to manage a woman’s labor seems unbelievable, but it does happen, perhaps in this case as a way Doctor Haley manages his stress and anxiety over caring for women with complicated deliveries.
Where the Authoritative Rules Originate: The Role of Organizations
Maternity providers feel caught in a bind. The defined way to escape being held accountable for unpreventable negative birth outcomes is to perform a c-section. Then, if a bad outcome happens, they are less likely to be blamed—they did all they could. From the perspective of maternity providers, they are caught in the fundamental irrationality of organizational change. Organizations have defined c-sections as the answer to liability threat. This definition causes maternity providers to change their behavior and perform more c-sections because they fear if they do not they will be blamed for bad birth outcomes, even those outcomes that are not preventable or predictable. The current economic, political, and legal environment binds organizations, and organizations change to protect organizational interests. In this case, professional organizations, malpractice insurers, courts, and hospitals have coalesced in their suggestion that c-sections solve liability threats.
The most common way that providers learn about c-sections being a solution to liability is by being involved in a lawsuit or hearing about a malpractice lawsuit where the maternity provider is asked by the litigating attorney why a c-section was not performed, with the underlying accusation being that a c-section would have prevented the bad outcome. Physician Lawrence Rascon makes clear his feeling that courts have defined c-sections as the solution to bad birth outcomes and liability threats:
Every time an obstetrician gets sued for a bad outcome of a pregnancy, the one thing in every trial is, “You should have done the cesarean section.” . . . And I think you hear that every single time and every malpractice case you hear or read about: . . . “You should have done a section,” or “You should have done a section earlier.” . . . And after a while everybody says, “Well, if that’s what we have to do, then that’s what we have to do.”
Courts also enforce this view by focusing on the timing of the c-section. For example, physician Robert Hinson tells me, “When you get deposed in a malpractice lawsuit . . . you will be asked if you could have done the cesarean five or ten minutes earlier or done it an hour earlier . . . and could that have made the difference.” In short, what maternity providers tell me repeatedly is that the message they get from courts on how to prevent malpractice suits is to perform more c-sections and to perform them early. Surgical birth becomes the answer to preventing liability threats, even though there is little evidence that c-sections prevent most bad outcomes.
I also commonly heard about the role of professional workshops and conferences. As I mentioned just a few pages ago, these workshops and conferences teach maternity providers the importance of documentation in preventing liability threats. However, the messages from these workshops and conferences go beyond documentation that protocols were diligently followed. Physicians talk about how these types of conferences affect how they assess risk in labor. Physician Philip Burgin speaks about a workshop he attended in which a prominent malpractice insurance plaintiffs’ attorney lectured: “One of the plaintiffs’ lawyers said something I [will] never [forget]: ‘OK, if you’re thinking about a c-section, you should be doing a c-section.’” Similarly, physician Lois Timberlake tells me of a lecture she attended at a professional conference: “There was one lecture I heard at a New England ob-gyn society meeting. . . . He started out as an obstetrician, and then he got his law degree, and he was very much, ‘When in doubt, section . . . don’t even think twice about it.’” In other words, attorneys spread fear of bad outcomes and c-section as an answer to this fear.
Litigating attorneys also spread fear of liability by seeking potential clients through advertising on local radio and television stations. Physicians commonly spoke about litigation attorneys’ television commercials that target them for malpractice lawsuits. Physician Rosemary Steel tells me, “I’m sure you’ve seen those commercials with the lawyers saying, ‘Is your child not as smart as you think [she] should be? Maybe it was a birth injury. Why don’t you give us a call?’ I mean, those kinds of commercials, of course, drive me crazy because they’re picking on things that don’t even exist sometimes.” These types of media presentations are perceived as threatening to maternity providers.
Once this definition of c-sections as relief to liability threats takes hold, the definition spreads among providers, even those who have not been sued. I heard this sentiment countless times in my interviews; it seems to be an unwavering belief among all types of maternity providers—nurses, midwives, and physicians—here expressed by physician Maggie Rust: “There is a whole perception that if you have a bad outcome but you’ve done a c-section that you’re not as much at risk being the physician as you are if you had a bad outcome and you had a vaginal delivery.”
Are C-Sections Just More Convenient for Obstetricians?
It is important here to digress for just a moment to examine the idea that physicians perform c-sections out of convenience, something that is heard in everyday conversation. I argue that convenience should be understood within the organizational constraints physicians face. For example, physicians would likely rather do c-sections outside of office hours rather than attend vaginal births during office hours because they need to see patients to earn money to pay skyrocketing malpractice premiums. Most health insurance companies pay a global fee for birth. That means that health insurance companies pay the physician a single rate, usually between $2,500 and $3,500, for all prenatal visits and the birth. Physicians are not compensated for attending a long labor, and if a physician interrupts office hours to attend a birth, he or she will potentially lose money by not seeing scheduled patients. Remember, as malpractice insurance premiums escalate, obstetricians must see more and more patients just to cover that increased rate. Protecting office hours becomes a necessity. Further, although providers performing c-sections in the evening may seem to smack of convenience, it is also the case that evening c-sections allow providers not to miss any office hours and to sleep at night. Getting a good night’s sleep is in the interest of providers who, because of increasing malpractice insurance rates, feel a pressure to see patients as many days in the week as possible. Many maternity providers told me they often have a full slate of patients, even if they were on call the night before. Obstetricians also expressed concern about the safety of c-sections during the nighttime because everyone is likely to be more tired.
In other words, liability may underlie “convenience” because of the pressure to earn money to pay malpractice insurance premiums. It may be that some physicians are performing c-sections to go play golf or to go to dinner, but with most physicians operating in group practices, this is not as much of a concern as it used to be with solo practices. In short, organizational constraints are a better explanation of practices that seem to be convenient for physicians.
“My goal is that everybody goes home healthy and happy, and I don’t get sued. . . . That’s my goal. And maybe I get paid. . . . Everybody’s happy. . . . For me that’s a perfect case,” Physician Philip Burgin tells me toward the end of the interview. Maternity providers have learned from courts, conferences, professional organizations, hospitals, insurers, and the media that the way to prevent liability threats is to perform c-sections. Organizational structures define c-sections as an answer to the liability threats faced by maternity providers. The rule of anticipated reaction is in play. Maternity providers try to avoid negative consequences by jumping quickly to c-sections. This is a way that organizations control behavior, even though it may not be apparent that organizations are behind individuals’ decisions. As physician Jack Bianco tells me:
So why not? . . . We’re not stupid. You kick us long enough, we respond. Do we believe in it? No. Do I believe we’re doing far too many c-sections? Absolutely. But every once in a while, you’ll try to let someone labor longer, even if it’s unpredictable because nature’s unpredictable, shoulder events, something will happen, and we’ll get blamed for it. So until society decides it doesn’t want to put up with this anymore, we’re going to continue to move in this direction because that’s what society has asked us to do.
Organizations have responded to uncertain legal, political, and economic environments, and one response that has coalesced among organizations has been to define c-sections as the gold standard for a “safe” birth.
Still, women do not commonly perceive that their births are being held in the hands of providers who feel backed into a corner. They trust their doctors and believe that if they recommend a c-section, it must be necessary. The Listening to Mothers II Survey found that, while 62 percent of women believe that the current malpractice system causes providers to take better care of their patients, well less than half believe that providers would perform an unnecessary c-section to avoid being sued. Trust in providers was a common sentiment, here expressed in the words of Dianne, a thirty-four-year-old woman who delivered her second child by c-section after two hours of pushing failed to result in a vaginal birth: “I mean I’m happy. The baby is safe, and I’m OK. I was avoiding a c-section. . . . I had to go through all possible ways of having a vaginal delivery, but I still couldn’t get a vaginal delivery. Yeah, so it was a little disappointing, but at the end all that matters is a healthy baby and healthy me, of course. Right?” What would women like Dianne think if they knew how preoccupied their providers are with being blamed for a bad outcome? Would they so easily discount their desire for a vaginal birth?
Excerpted from "Cut It Out: The c-section epidemic in America" by Theresa Morris. Copyright 2013. NYU Press. All rights reserved.