Roundtable: The ob/gyn and legal liability: condition critical, Part 1

I can think of no other crisis-and crisis is the right word for our current situation-that has had such a direct impact on the lives of America's obstetricians and gynecologists. The impact of the professional liability insurance crisis has been broad and pernicious. It has decreased the availability of both obstetricians and hospitals with labor and delivery facilities. It has escalated health-care costs, eroded the incomes of ob/gyns, and impaired our ability to recruit medical students into the field. The crisis has also devastated academic centers and crippled our ability to sustain the careers of basic, translational, and clinical researchers. More than anything else, I think it has resulted in a collective and palpable malaise in our field. Wherever I go to lecture, whatever subject I'm talking about, somehow the topic always turns to professional liability. The individual stories are really heart-rending. Some of our colleagues have lost their practices, families, houses, cars, health, and literally their lives to lawsuits. To me, the professional liability insurance crisis is the most critical issue ob/gyns face, and it's got to be resolved, and quickly.

Charles J. Lockwood, MD

Moderator

Dr. Strunk: Conventional wisdom has been to term the crisis in the 1970s one of insurance availability, the crisis in the 1980s one of affordability, and our current crisis as combining both elements. But all of the crises really have involved both availability and affordability of insurance. To understand the problem, I think we have to go back to the mid-1800s, when the evolving discipline of medicine in this country was subject to a variety of forces, including postindependence anti-elitism and anti-monopoly forces.

Lacking an external organization to attest to an individual's professional bona fides, the medical profession itself was called upon to establish standards. And that's when our problems began, because you can't have negligence without a standard. The early physician "giants" hoped that the legal profession would help us get rid of the snake oil salesmen and herbalists and direct the public toward the true learned profession of medicine and surgery. But that didn't quite happen. Instead, sometime between 1850 and 1900, the attorneys began to sue doctors, including the "giants," and the giants were dismayed and surprised. But these physicians were the ones who had articulated standards, and there was no basis for judgment against the herbalists and the snake oil salesmen, because they really didn't have any standards.

Along with development of professional standards was an unprecedented desire for medical innovation, which has characterized modern medicine in this country. Around the 1900s, a third element was added: professional liability insurance. We thought insurance would be wonderful, because it would provide some measure of compensation to a patient injured as a result of medical error. But instead it became a magnet. Physicians who sought and could afford insurance were suddenly all ripe for the plucking.

In the mid-1800s, physicians had the opportunity to classify themselves in a more mercantile context and to go the route of a contract relationship with patients. Had we done so, maybe we could have avoided the entire tort process. Given all of the changes in the 20th and 21st centuries, there are some good arguments to be made for making the physician-patient relationship one of contract rather than tort.