Obstetrical Liability

The liability climate for obstetrics practice in the United States is described as a state of chronic crisis despite decades-long efforts to identify and mitigate liability risk and improve patient safety (Pettker et al.). Indeed, 77.3% of fellows from the American College of Obstetricians and Gynecologists report they have been sued at least once, with an average of 2.64 claims per obstetrician (ACOG "Coping"). Although only 8.3% of U.S. births are attended by midwives (ACNM), a recent closed-claims study by a medical professional liability insurer found that 17% of its obstetrics closed claims involved a midwife, and those cases resulted in 25% of indemnity paid (Hamilton et al.).

Astronomical damage awards for permanent birth injury are increasingly common. It is not difficult to arouse the sympathy of jurors watching a "day in the life" video of a permanently impaired child struggling to perform tasks that otherwise would be simple activities of daily living. Jurors are aided in determining potential damage awards by the opinions of forensic economic experts concerning present, past, and future economic losses. A Pennsylvania jury, for example, found a hospital liable for more than $50 million, allocating $3 million for the child's "future lost earnings," $12 million for "future medical expenses," $1.3 million for "future pain and suffering," $1.5 million for "increased risk of harm," $2 million for "past emotional distress," $6.5 million for "future emotional distress," $4 million for "past loss of a normal life," and $20 million for "future loss of a normal life," according to the jury verdict form. The plaintiffs reportedly rejected an offer made during the trial to settle the case for $10 million. (Bookwalter; Law 360) Other examples include a $100 million judgment in 2000 in Pennsylvania (Ginanni), a $60.5 million award in Florida in 2008 (Bravo v. United States), a $38.5 million judgment in 2009 in Connecticut (Silver et al.), and a $14.5 million judgment in 2014 in Ohio (Farkas).

Less commonly asserted, but also costly, are claims for maternal death. In 2013, for example, an Illinois jury awarded $15.5 million to a plaintiff whose 33-year-old wife, the mother of their two children, died during a cesarean delivery. The jury found the hospital and two obstetrics providers liable for failing to diagnose and properly treat the mother for placenta accreta, a high-risk complication. (ABC 7 Chicago)

In 2015, a CNA hospital closed-claims study reported that perinatal units (antepartum, labor and delivery, and postpartum) have significantly higher average indemnity payouts compared with overall average payouts for adverse events occurring in other hospital care settings. The labor and delivery unit was the second most frequent care setting involving claims for death from cardiopulmonary arrest. One-third of the closed claims involved maternal or fetal death; nearly 60% of perinatal closed claims involved permanent injury, and slightly more than 8% involved temporary injury. (CNA)

The CNA study grouped allegations...