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OCR for page 78
Medical Professional Liability and
Access to Obstetrical Care:
Is There a Crisis?
DEBORAH LEWIS-IDEMA, M. SC.
rn
~ he costs of professional liability in-
surance have risen dramatically in recent years. Between 1984 and
1987, premiums paid by the average obstetrician-gynecologist rose
more than 70 percent—to $37,000 per year.) Family practitioners who
provide obstetrical services pay almost twice as much for insurance as
their colleagues who do not practice obstetrics.2 Surveys by national and
state organizations indicate that physicians are dropping the practice of
obstetrics or changing the levels and types of care they render in re-
sponse to malpractice concerns. Incidents of women who experience
extreme difficulty in obtaining adequate maternity services have been
reported throughout the United States.
The growing sense that there may be a crisis in obstetrical care has
particular implications for low-income patients. There has been little
improvement in infant and neonatal mortality rates in the United
States in recent years, and the number of women receiving late or no
prenatal care is large. Low-income patients, who face more barriers to
access to care than more affluent patients, are also more likely to be
medically at risk, to experience higher rates of infant mortality, and to
have low-birthweight babies than more affluent patients. Residents of
rural areas are also likely to encounter difficulty in obtaining care: a
single physician's decision to stop practicing obstetrics can result in
impaired access for women who have trouble reaching distant providers.
In this chapter I examine the relationship of professional liability
issues and access to obstetrical care for low-income women and women
78
OCR for page 79
ACCESS ~0 OBSTETRICS CARE 79
living in rural areas. Drawing primarily on the numerous studies done
by state and national organizations in the past several years, ~ attempt
to determine whether the sense of crisis is justified and, if so, how the
crisis might be addressed.
METHODOLOGY
Examining the relationship between professional liability concerns
and access to care is like assembling a jigsaw puzzle. The research on
this question is extremely limited, and there is no scientific study
showing that the number of physicians serving low-income women is
declining and that the decline is due to malpractice concerns. Various
pieces of information from numerous sources must be drawn together to
obtain a picture, or at least an outline, of the situation.
For this report, I reviewed 30 state studies, principally from state and
national medical associations,3 and nine national studies.4 The avail-
able literature highlights the impact of professional liability concerns
on physician decisions to provide obstetrical care; only a few studies
examine access to care directly. The studies vary enormously in exten-
siveness and methodology. Some are highly rigorous, whereas others
are simple, one-page questionnaires; most are descriptive. Response
rates also vary significantly.
The most important caution regarding the research is that in a
number of cases questions were asked in a manner that presupposed the
answer. Almost all of the studies sought to determine whether physi-
cians were changing their practices as a result of professional liability
concerns. Many studies, however, phrased the question as "Have you
changed your practice due to malpractice concerns (or the malpractice
crisis)?" This phraseology does not distinguish between situations in
which physicians ceased practicing obstetrics because of age, health, or
simply boredom and those in which professional liability concerns were
their predominant motivation. It is likely that any physician who dis-
continued, curtailed, or altered obstetrical practice in the last four or
five years can reasonably attribute the decision to malpractice concerns,
but there may have been other motivating factors as well. Studies that
ask the question in two parts "Have you changed practice? If so,
why?" are more likely to separate malpractice from nonmalpractice
motivations.
Although the available literature may tend to overstate the impor-
tance of malpractice considerations in physicians' decision making, such
overstatement does not mean the literature should be discarded. As a
whole the studies document trends that appear to be influenced by
physicians' malpractice concerns. Equally important, the absence of
OCR for page 80
80 MEDICAL PROFESSIONAL LIABILITY: VOLUME 1:1
conclusive proof does not obviate the need for policy consideration of the
issues surrounding malpractice and access. If there is good reason to
believe that access to obstetrical care for low-income women and rural
women is being affected by malpractice concerns, to wait for accurate,
statistically valid studies would be highly inappropriate.
PROFESSIONAL LIABILITY CONCERNS AND CHANGING
OBSTETRICAL PRACTICE
Several logically related questions must be examined to determine
whether professional liability concerns are affecting access to care. To
provide a framework for analyzing the widely varying state studies, ~
arrayed the states on each of the reported variables and constructed a
median state.
What Changes Are Occurring In Obstetrical Practice?
The literature indicates that sizable numbers of obstetrical pro-
viders—both obstetrician-gynecologists (ob-gyns) and family practi-
tioners—are eliminating obstetrics from their practice, reducing care to
identifiable high-risk populations, or reducing the overall number of
deliveries they perform (Table 11.
· Elimination of obstetrics: The American College of Obstetricians
and Gynecologists (ACOG) reports that in 1987 12.4 percent of its
members stopped practicing obstetrics as a result of professional lia-
bility concerns; the state surveys report that from 7 to 70 percent of
responding physicians have stopped. In the median state, 25 percent of
all surveyed obstetrical providers have stopped practicing obstetrics.
The studies that surveyed ob-gyns alone report that from 6 to 30 percent
of respondents stopped obstetrical practice. In the median state, 17
percent of ob-gyns reported eliminating obstetrics.
The attrition rate among family practitioners is higher than that
among ob-gyns. The American Academy of Family Physicians (AAFP)
reported that, by the end of 1985, 23.3 percent of its member~twice
the proportion reported by the ACO~had stopped practicing ob-
stetrics because of malpractice concerns. The state studies reported that
from 8 to 75 percent of family practitioners had dropped obstetrics over
the past five years. Seven of the studies allowed direct comparison of
changes between family practitioners and ob-gyns. In only one (Mary-
land) was the proportion of family practitioners stopping obstetrics
smaller than the proportion of ob-gyns stopping this part of their
practice.
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ACCESS no OBSTETRICAL CARE 81
TABLE 1 Summary Data (as percentage) from Studies of
Professional Liability and Obstetrical Practice
Eliminated Obstetrics Reduced High- Reduced
Range All Phys. OB-GYNs Risk Care Volume
-
All Studies
N=33 N=17 N=11 N=13
Minimum 7.00 5.90 16.00 5.80
Maximum 75.00 30.00 48.70 28.00
Median 25.00 14.30 23.60 12.90
State Studies
N=27 N=14 N=8 N=8
Minimum 7.00 5.90 16.00 5.80
Maximum 75.00 30.00 48.70 28.00
Median 25.00 17.50 24.30 18.50
· Reduced care for high-risk women: The state studies report that
from 16 to 49 percent of ob-gyns reduced service to high-risk women. In
the median state, almost one-quarter of ob-gyns reduced or eliminated
service to this population. This figure is similar to that reported by the
ACOG: in 1987, 27 percent of its members reduced or eliminated ser-
vices to high-risk women.
· Reduced volume of obstetrical care: This is perhaps the most diff~-
cult practice change to document from the state studies. Only eight of
them report on this subject, with 6 to 28 percent of physicians saying
they were reducing the number of deliveries they perform. The median
was 18.5 percent. By comparison, the ACOG reported that about 13
percent of member ob-gyns reduced their volume of care in 1987; the
AAFP reports reductions by less than 10 percent of member family
practitioners.
The state studies tend to show higher proportions of physicians alter-
ing their practice of obstetrics than do the ACOG and AAFP data. This
disparity may reflect methodological differences among the state and
national studies, but it may also reflect real geographic variation in
physician behavior. It is logical to expect that studies would have been
conducted in those states in which malpractice issues have been partic-
ularly critical to the profession.
Are These Changes Occurring Because of Professional
Liability Concerns?
Physicians consistently report that they are reducing or eliminating
their obstetrical practice because of the cost of malpractice insurance or
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82 MEDICO PROFESSIONAL CITY: VOICE ~
TABLE 2 Physicians Reporting Malpractice Issues as a Factor in
Their Decision to Change Practice (as percentage)
Studies (N= 16) of Studies (N= 13) of Physicians
Range All Physicians Who Changed Practice
Minimum 9.10 18.60
Maximum 70.00 99.00
Median 24.15 57.00
the risk of being sued. Although the precise numbers reported should be
viewed with caution, the direction of these responses is too compelling to
discount as an artifact of survey construction.
· T~renty-nine studies report that between 9 and 99 percent of all
physicians surveyed have changed their obstetrical practice because of
professional liability issues. The studies were subdivided into those
reporting on all physicians and those reporting on physicians who had
made practice changes. In the median state, more than half of the
physicians who changed their practice said that malpractice concerns
were a major factor in their decision (Table 21.
· In studies in which the question of motivation was separated from
the act of changing obstetrical practices, professional liability issues
were cited by more than half the respondents as a major determinant in
their decision to change. In Georgia, for instance, 55 percent of ob-gyns
dropping obstetrics cited malpractice concerns as the sole reason for
their decision. In Illinois, 57 percent cited malpractice insurance costs
and 44 percent cited the risk of being sued. In Kentucky, 78 percent of
family physicians stopping obstetrics and 38 percent of those reducing
their caseloads cited malpractice concerns.
· Studies of family practitioners have tended to provide respondents
with the broadest range of choices for describing their motivation. These
studies show a greater influence of personal factors—but malpractice
concerns are of equal or greater importance. Although the Alabama,
Ohio, and Washington reports found that 25 to 50 percent of respondents
cited personal or professional concerns (age, health, time, lack of alter-
native physician coverage), 50 to 70 percent of respondents cited mal-
practice issues as a key factor in their decision.
· Only one study (Ohio) included statistical tests on the relationship
between malpractice concerns and the decision to stop practicing obstet-
rics. The relationship was found to be statistically significant.
Summary
It is clear that major changes are occurring in the practice of obstet-
rics. A sizable number of physicians are eliminating or reducing obstet-
OCR for page 83
ACCESS T0 OBSTETRICS CARE 83
rical services and reducing services to high-risk women. Most physi-
cians cite malpractice-related issues as a principal factor in their
· ~
c .eclslon.
Certainly, the importance of malpractice concerns as the sole determi-
nant of physician behavior may be overstated. Even apart from the
wording of questionnaires, the current climate, both within the profes-
sion and among the public, is one in which the "malpractice crisis" is
accepted as a rational explanation for the decision to stop or reduce
provision of obstetrical services. For some physicians who are consider-
ing changing their practice for personal reasons, malpractice may sim-
ply be the factor that finally tips the balance. Nevertheless, the sheer
weight of reports from physicians indicates the importance of mal-
practice concerns in their decisions to eliminate or reduce obstetrical
care.
THE IMPACT OF PHYSICIAN PRACTICE CHANGES ON
ACCESS IY) CARE
Only nine of the state studies specifically sought information on the
impact of changes in physician practice on access to care. Relevant
information is also available from state agencies and national studies
and from research that has looked specifically at changes in rural areas.
Access for Medicaid Recipients and Low-Income Women
All of the studies that asked physicians specifically about care for low-
income patients reported declines in provider participation.
· In Illinois, 17 percent of physicians practicing obstetrics plan to
reduce participation in Medicaid. Almost two-thirds of Washington ob-
gyns limit the number of Medicaid patients they serve. In West Virginia,
41 percent of ob-gyns (compared with an average of 18 percent for all
physicians) report that they do not serve Medicaid patients owing to
liability concerns.
· Almost 13 percent of Oregon obstetrical practitioners stopped serv-
ing Medicaid patients during 1986-1987; another one-third specifically
limit their Medicaid caseloads. About 10 percent have recently stopped
providing charity care, and more than 40 percent limit the charity care
they provide.
· Only 45 percent of Kentucky physicians serve Medicaid obstetrical
patients. Three-quarters ofthe physicians who have reduced their provi-
sion of obstetrical care cite malpractice issues as a reason for nonpar-
ticipation in Medicaid. Only one-third of Maryland ob-gyns accept Medi-
caid.
OCR for page 84
84 MEDICAL PROFESSIONAL LIABILITY: VOLUME II
· In January 1987, 133 physicians in Denver provided obstetrical
services to Medicaid patients; the state Medicaid program reported that,
by December of that year, only 9 (apart from hospital-based personnel)
were still providing such care. In the entire state of Colorado, only 46
primary care physicians were accepting Medicaid obstetrical patients in
December 1987.5
· In Texas, indigent women on average constitute 10 percent of the
ob-gyn caseload. About one-third of ob-gyns report that they are limit-
ing indigent care "a great deal"; another one-third are not limiting care
at all.
· More than half the ob-gyns in North Carolina had been providing
services in local health departments. Almost 30 percent reported stop-
ping because of malpractice concerns.
One effect of reduced physician involvement in Medicaid is that case-
loads for those who continue to provide care are increasing. In Washing-
ton State, the average number of deliveries per Medicaid provider rose
from 14.8 in fiscal year 1985 to 16.8 in fiscal year 1986. Although the
number of participating ob-gyns actually increased slightly, the
number of participating family and general practitioners fell by 9.3
percent. At the same time, the number of Medicaid deliveries increased.
As a result, the average number of Medicaid deliveries for ob-gyns rose
from 26.4 in fiscal year 1985 to 28.3 in fiscal year 1986. For family
physicians, the increase was from 7.5 to 8.3 deliveries (Table 31.
A recent National Governors' Association survey of state Medicaid
and Maternal and Child Health agencies includes at least one response
from each state (the District of Columbia did not respond). This report
therefore may provide the broadest overview of the impact of malprac-
tice concerns on access to care. According to the administrators of public
programs, malpractice issues are reducing significantly the number of
participating providers, and some areas of their states are experiencing
major problems in access to care.6
· More than 60 percent of Medicaid programs and almost 90 percent
of Maternal and Child Health programs are experiencing significant
difficulty in finding providers who are willing to render maternity care.
Nine out of ten programs say that rising malpractice insurance costs
have contributed to this problem.
~ Three-fifths of the agencies reported that physicians have stopped
providing care to their clients because of malpractice concerns. Seven
out often agencies said that the number of providers was decreasing for
that reason.
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ACCESS ~0 OBSTETRICAL CARE 85
TABLE 3 Changes in Deliveries by Medicaid Maternity Care
Providers in Washington State, 1985-1986
Change
Deliveries 1985 1986 (%)
All providersa 858 821 -4.3
Mean number per provider 14.8 16.8 13.6
Percentage of providers with
1-5 deliveries 53.3 50.2 -5.8
21+ deliveries 18.6 20.5 10.2
Obstetrician-gynecolog~sts 235 246 4.7
Mean number per provider 26.4 28.3 7.3
Percentage of providers with
1-5 deliveries 32.3 30.9 -4.3
21+ deliveries 35.3 37.4 5.9
Family general practitioners 345 313 -9.3
Mean number per provider 7.5 8.3 10.8
Percentage of providers with
1-5 deliveries 53.6 59.1 10.2
21+ deliveries 7.5 8.0 6.0
a Includes clinics, midwives, and unidentified providers.
SOURCE: Washington Department of Social and Health Services. 1987. Maternity
Care Access. Olympia.
· In response to an open-ended question, 21 states reported at least
484 counties in which low-income women, Medicaid recipients, or both
have limited access to prenatal and delivery services. Because this
information was not specifically requested in the questionnaire, re-
sponses may understate the extent of the problem.
~ About halfofthe agencies regarded low reimbursement rates as the
primary deterrent to provider participation in their programs. One-fifth
considered malpractice insurance costs the most important reason.
Access to Care In Rural Areas
Family practitioners have traditionally been key providers of obstetri-
cal care in rural areas. The high rates at which these physicians are
leaving obstetrical practice appear to be generating significant access
problems in some parts of the country.
· It is estimated, based on data from the AAFP and the ACOG, that
the number of obstetrical providers in nonmetropolitan areas has fallen
by about 20 percent over the past five years. This decline is particularly
significant among family physicians (Figure 1~.
~ In 1986, 17 counties in Georgia had no obstetrical providers; there
were only 25 physicians providing obstetrical care in all of rural Nevada.
OCR for page 86
86 MEDiC~ P~FESSiONAL CITY: VOILE ~
One-third of Arizona's family physicians outside Maricopa and Pima
counties (Phoenix and Tucson) had stopped providing obstetrical care by
the end of 1985. In Idaho, more than one-quarter of ob-gyns have
dropped obstetrics; in West Virginia, another largely rural state, more
than half the ob-gyns have considered leaving the state.
· Rural physicians perceive a greater potential impact on access to
care than do urban physicians. In California and Oregon, a greater
proportion of rural physicians reported women without access to care.
Although more physicians have stopped obstetrical practice in Detroit
than in rural Michigan, 69 percent of rural physicians report access
problems, compared with 61 percent in Detroit.
· A 1985 survey of small and rural California hospitals reported that
30 of 56 respondents providing obstetrical care had family physicians on
their staff who were planning to drop obstetrics. Thirty-six of the hospi-
tals (64 percent) indicated that they would cut back or eliminate their
obstetrical services.
in
cc5 12—
~5
o
~ 10
co
ce
._
.~' 8
An
p77] Obstetrician
l///l Gynecologist
~ Family Practitioner
Prior to Current
Malpractice Crisis
FIGURE 1 Changes in number of rural physicians practicing obstetrics.
OCR for page 87
ACCESS TO OBSTETRICAL CARE 87
· Sixty of the agencies responding to the National Governors' Asso-
ciation survey reported geographic areas with significant access prob-
lems and 87 percent of these reported that the access problem was
particularly acute in rural areas. Thirty-five of the 50 states reported
problems with provider participation and access to care in rural areas.
Summary
As a whole, the literature suggests that professional liability concerns
among physicians are generating access problems. In instances in which
attrition from obstetrical practice has been great, caseloads for the
remaining physicians increase, as suggested by the experience in Wash-
ington State. This trend creates a vicious circle, wherein physicians who
continue to accept Medicaid patients experience greater pressures on
their time—possibly to the point where they need to begin restricting
their Medicaid practice. With fewer physicians providing obstetrical
care, the low-income patient or Medicaid recipient, who may be per-
ceived as less financially, socially, or medically desirable, can end up
competing with a middle-class patient for the physician's time.
Although reduced availability of care for high-risk patients affects the
entire population, it has particular implications for low-income women.
These women are statistically more likely to be medically at risk and
have higher rates of infant mortality and low-birthweight babies. This
population requires easier access than the general population to the
kind of care appropriate for high-risk mothers; yet that care appears to
be less widely available to them.
Every study that looked at the relationship between malpractice
concerns and Medicaid found that physicians report that they are reduc-
ing their Medicaid caseloads, at least in part, because of malpractice
concerns. The state agencies, which must rely on these physicians to
render care to their clientele, report significant problems in recruiting
and retaining providers. In a number of counties, clients of public pro-
grams are experiencing difficulty in obtaining care. Although Medicaid
payment rates, traditionally the primary deterrent to physician partici-
pation, continue to be a significant drawback, many providers cite
malpractice issues as a key reason for not serving Tow-income patients.
Although the causal relationships among malpractice issues, changes
in obstetrical practice, and access to care for low-income women and
rural women cannot be precisely documented with the available data,
the weight of the evidence is in one direction. It is reasonable to conclude
that access to care for Medicaid and other Zow-income women is being
affected by changes in obstetrical practice generated by professional lia-
bility concerns.
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88 MEDiC~ PROFESSIONAL CITY: VOLUME ~
MEDICAID RECIPIENTS AND PROFESSIONAL LIABILITY
Physicians' concerns about professional liability issues can be divided
into two categories: (1) the cost of malpractice insurance and (2) the risk
of malpractice litigation. Each is an important factor in physicians'
practice decisions.
Cost of Insurance Coverage
The rise in malpractice insurance premiums has intensified tradi-
tional provider concerns about low rates of Medicaid reimbursement for
services. The argument is phrased in two ways. The first contends
that payments are too low to cover the costs of malpractice coverage. The
second maintains that, in the face of rising malpractice insurance costs,
physicians must devote more time to private patients to meet expenses.
It is important to understand that how much a provider must charge
to meet all expenses, including malpractice insurance, is difficult to
ascertain and depends to some extent on the net income desired by the
practitioner. The ACOG reported that in 1986 malpractice premiums
represented 20 percent ofthe average ob-gyn's overhead; the ACOG also
reported that premiums represented 10.3 percent of gross income in
1986, compared with 9.7 percent in 1984.7 Thus, although malpractice
premiums rose 46.7 percent in the two years, the proportion of gross
income devoted to malpractice insurance rose by only 6.2 percent. This
differential must have been covered by increasing charges to private
patients.
Because family practitioners tend to have many fewer obstetrical
patients than do ob-gyns, for them the higher premiums may pose a
clear economic choice. Table 4 uses data from the state of Washington to
illustrate this point. Family physicians who do obstetrics paid an addi-
tional $9,000 for obstetrical coverage; ob-gyns paid an additional
$11,000 above premiums for gynecology only. The family physician
performing 30 deliveries a year (the median number) paid $300 per
delivery for insurance. Ob-gyns, because of their much larger volumes,
had much lower premium costs per delivery. An ob-gyn with the median
number of deliveries (121) paid about $93 per delivery for obstetrical
malpractice coverage.
Few would disagree that Medicaid programs generally pay providers
at rates well below those of private insurers or the average community
charge. In 1986 the average Medicaid reimbursement for total obstetri-
cal care rendered by an obstetrician-gynecologist was $550, ranging
from $214 to $1,508. Data from 36 states show that Medicaid payments
averaged 44 percent of the approximate community charge for prenatal
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ACCESS T0 OBSTETRICAL CARE 89
TABLE 4 Estimated Additional Malpractice Premium Cost Per
Delivery, Family Physicians and Obstetrician-Gynecologists in
Washington State, 1986
Added Cost for
Number of Malpractice Cost of Insurance
Physician Deliveries Insurance Per Delivery
Family Physicians
Median, rural M.D.s 35 9,187 262.49
Median, all M.D.s 30 9,187 306.23
Maximum, rural M.D.s 150 9,187 61.25
Maximum, all M.D.s 200 9,187 45.94
Obstetrician-Gynecologists
Median, semirural M.D.s 110 11,244 102.22
Median, all M.D.s 121 11,244 92.93
Maximum, semirural M.D.s 210 11,244 53.54
Maximum, all M.D.s 350 11,244 32.13
NCYIES: Because no rural ob-gyns were identified, data for specialists in semirural
areas were used. The authors reported premiums for family physicians practicing obstet-
rics at $13,511; premiums for those not practicing obstetrics or performing surgery were
$4,324. For ob-gyns, premiums were $33,026 with obstetrics and $21,782 for surgical
gynecology without obstetrics.
SOURCE: Rosenblatt, R., and B. Detering. In press. Changing patterns of obstetric
practice in Washington State. Family Medicine.
care and routine delivery. The highest state paid 76 percent; the lowest,
14.8 percent.8 In many cases, these rates represent major increases over
prior years because at least 20 states increased payments between 1984
and 1986. Additional increases are being considered—and enacted by
states, particularly those that are adopting the expanded Medicaid
coverage options for children and pregnant women available under the
Budget Reconciliation Act of 1986.
The problem of Tow reimbursement rates is complex, reflecting pres-
sures on state budgets, competition among provider types for improved
coverage and payments, and general state philosophies regarding Medi-
caid. The question of whether Medicaid reimbursement should reflect
the rising costs of malpractice insurance is even more complicated.
Should Medicaid reflect the full cost of malpractice coverage? Insurance
premiums do not vary with caseload; therefore, one could reasonably
argue that service to Medicaid patients is a marginal cost and payments
that do not reflect the full cost of coverage are not necessarily unreason-
able. If Medicaid reimbursement policies were revised to assume part of
the cost of malpractice insurance directly, should these costs include
only the obstetrical portion of the premium?
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90 MEDiC~ PROFESSIONAL I: VOILE ~
Fear of Litigation
Although insurance costs have been the focus of policy debate, partic-
ularly at the state level, risk aversion, or the fear of suit, is an equally
strong motivating factor for physicians. Nobody wants to be sued or to
have to defend his or her professional abilities in court. Even when the
physician wins the case, the psychological impact of having been sued is
enormous. Seven out of ten ob-gyns are likely to be sued in the course of
their professional lives. Although family physicians are sued less fre-
quently, they may fee] more vulnerable because of their less specialized
training. The physician's desire to manage his or her individual risk and
to avoid situations that might lead to litigation is a normal human
response to the current climate.
For low-income women and women covered by Medicaid, access to care
may be affected as much—or more—by physicians' fears of suit as by
reimbursement rates. As previously noted, low-income patients tend,
statistically, to be at greater medical risk; they also tend therefore
to be more affected by reductions in the provision of care to high-risk
women. In addition it is possible, although difficult to document, that
physicians perceive the reduction of care to Medicaid and low-income
women as an effective means of reducing their exposure to high-risk
patients.
Managing high-risk pregnancies requires a commitment to continu-
ity on the part of patient and physician. If the physician believes that
this commitment may not be forthcoming, he or she may be less willing
to initiate service. It may be easier for the physician to stop serving
Medicaid patients altogether than to attempt to make such judgments
(if desired) on an individual basis.
It is ironic that the very factors that call for increased access to care
can also intensify a physician's sense of risk when serving Tow-income
patients. The extent to which Tow-income women receive late or no
prenatal care and are therefore at greater risk has been well docu-
mented. Indeed, such data are at the heart of the Medicaid expansions
recently established by Congress and are the focus of such groups as the
National Commission on Infant Mortality Prevention. Yet it is precisely
this information that may underlie a physician's sense that service to
low-income and Medicaid patients increases the risk of malpractice
litigation.
A final issue, which calls for more extensive discussion, is the notion
that "the poor sue more." The extent of this belief among physicians is
not known, but anecdotal information suggests the belief is held by a
significant minority.
This issue raises questions of both phraseology and fact. Does "the
poor" refer just to Medicaid recipients or to any low-income person? How
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ACCESS no OBSTETRICS CANE 91
is "poor" defined in terms of income? It is possible that the concept of "the
poor" is defined by individual perceptions, which could be flawed. The
phrase "sue more" could mean that the poor sue more frequently than
the rest of the population at risk. Does it mean they bring more "frivo-
lous" suits? If the poor do sue more frequently, is it because they are at
greater risk of malpractice incidents than the nonpoor?
To analysts, the statement "the poor sue more" seems almost counter-
intuitive. The legal literature indicates that the low-income population
generally has less access to the legal system a fact that would lead one
to expect the poor to "sue less." Because malpractice actions are fre-
quently brought on a contingent fee basis—and awards are usually
based on lost earnings—attorneys should have less financial incentive
to take cases for the poor.
Currently available data provide very limited information on the
relation of income to malpractice suits. The Department of Health,
Education, and Welfare's Commission on Medical Malpractice found in
1973 that greater numbers of"negative medical incidents" were associ-
ated with higher incomes (the study did not examine claims rates).9 A
study in Cook County, Illinois, in the 1970s found that black plaintiffs
constituted almost 25 percent of the county population but accounted for
only 11 percent of malpractice suits.~° A 1986 study by Weismann and
colleagues also found a negative relation between service to minority
patients and a physician's likelihood of being sued.
Five studies that specifically examine Medicaid recipients and mal-
practice litigation arrive at conflicting results.
· Studies of closed claims from malpractice insurers conducted by the
U.S. General Accounting Office (GAO)~2 and by the State of Maryland
showed that Medicaid recipients brought suit in roughly the same pro-
portion as their numbers in the population. The GAO analyzed a sample
of all claims; 5.8 percent were brought by Medicaid patients, who ac-
count for about 9 percent of the U.S. population. Average expected
payout for a Medicaid plaintiff was almost $25,000; the payout for the
average privately insured patient was almost $250,000.~3
· In Maryland, Medicaid recipients accounted for about 13 percent of
ob-gyn service claims between 1977 and 1985. In 1986 Medicaid recip-
ients constituted about 19 percent of obstetrical admissions to Maryland
hospitals.~4
· A nationwide survey of ob-gyns regarding fertility-control services
asked several questions about malpractice experience. The study found
no significant correlation between Medicaid participation and threat-
ened or actual malpractice litigation.~5
· Two surveys of providers found higher rates of litigation among
Medicaid patients. Respondents in the 1986 Washington State survey of
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92 MEDICAL PROFESSIONAL LIABILITY: VOLUME II
physicians said that 26 percent of their reported malpractice suits had
been initiated by Medicaid recipients, whereas Medicaid patients ac-
counted for only 17.6 percent of their practices. Recently, the ACOG
reported on a nationwide survey of hospitals' malpractice claims in
1982. Hospitals reported that Medicaid patients represented 17.1 per-
cent of deliveries but initiated 24.8 percent of malpractice claims (this
finding was not statistically significant.
The data that are currently available neither substantiate nor dis-
prove the belief that "the poor sue more." All of the studies suffer from
methodological problems that may be inherent in any analysis of this
issue.
· Studies of malpractice claims that distinguish among claimants'
health insurance status have a very large proportion of claims for which
the payer status is unknown. These claims were eliminated in calculat-
ing the percentages presented above, a decision that assumes that the
unknowns are distributed similarly to the knowns. Given the large
number of unknowns, this assumption may be faulty.
· Surveys of physicians are subject to flaws if physicians report per-
ceptions of patient payer status. There is some evidence that physicians
tend to overstate the proportion of Medicaid patients in their practiced
Study authors in Washington State could not determine whether this
type of overstatement affected their data.
· The results of the ACOG hospital survey may have been influenced
by the nature of the respondents. One-third of the hospitals had more
than 2,000 deliveries—and accounted for 70 percent of the reported
claims. In contrast to smaller facilities, hospitals of this size are more
likely to be regional neonatal centers or high-risk obstetrical centers
factors that would increase both the Medicaid caseload and the potential
for "bad outcomes" and possible malpractice litigation. In addition, large
hospitals tend to be in urban areas, which have larger Medicaid popula-
tions. Danzon's studies of malpractice have shown that urban areas tend
to have higher rates of malpractice litigation general. Although the
total sample drawn by the ACOG was statistically reliable, the size (313
hospitals and 306 claims) does not allow for analysis of differences in
claims by hospital size.
CONCLUSIONS
It appears that the professional liability crisis is generating a com-
mensurate crisis in access to maternity services, particularly among
low-income women and rural women. If physicians continue to respond
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ACCESS ~0 OBSTETRICS CARE 93
to their professional liability concerns by eliminating or reducing their
obstetrical services, the access problem is likely to intensify and touch
even those areas of the country that are not experiencing problems
today. Effective implementation of the new Medicaid expansions will
call for creative efforts to address the professional liability concerns of
physicians as they relate to participation in Medicaid.
Although the causal relationships between professional liability con-
cerns and service to Medicaid patients are not fully established, Medi-
caid reimbursement rates and fear of suit appear to be primary factors.
The empirical evidence suggesting that physicians who serve Medicaid
patients are at greater risk of malpractice litigation is inconclusive at
best; yet the perception may have assumed its own reality. In today's
litigious climate, the rational response to a belief that service to low-
income women increases the risk of litigation is to reduce the provision
of such care.
This chapter has focused on the implications of the malpractice insur-
ance crisis for access to obstetrical care. Further research is clearly
needed to document trends more fully and to examine the relationship
between patient income and malpractice suits; exploration of policy
options, however, probably should not await the results of such studies.
The weight of current evidence suggests that action may be needed
before the research could be completed.
Several states have attempted to address the insurance and access
issues. Virginia's new no-fault law includes a requirement that partici-
pants in the fund also take part in developing a plan of care for Medicaid
recipients and other indigent women. Missouri has adopted provisions
to cover liability insurance costs for physicians who contract with local
health departments; Montgomery County, Maryland, recently adopted
. · · ~
s1m1 ar provisions.
The federal government could assist states in these endeavors by
providing greater flexibility in the Medicaid programs. One route would
be to authorize higher Medicaid matching payments in specified situa-
tions. In fiscal year 1988 the federal government paid 50 to 80 percent of
medical expenditures, with the rate varying among states. States might
be eligible for higher matching rates to promote recruitment of physi-
cians in areas with few ob-gyns; to enable the Medicaid program to
employ physicians, if necessary; to develop systems of care that might
reduce the physician's sense of risk when serving Medicaid recipients; or
to experiment with addressing malpractice costs directly by helping to
pay premiums.
Another approach would be through defined Medicaid waivers. Medi-
caid law provides reimbursement for specified services to identified
recipients. Under the law, all providers offering that service must be
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94 MEDICAL PROFESSIONAL LIABILITY: VOLUME II
eligible for the same rate, even though payment rates may vary geo-
graphically or by specific service. These provisions restrict the ability of
states to develop targeted solutions to malpractice-related problems. For
example, one state Medicaid program has provided funds to help a local
health department in recruiting physicians for health department and
Medicaid programs. Other approaches might be to increase reimburse-
ment rates for physicians with large Medicaid practices (to compensate
for their rising malpractice insurance costs) or to provide some state
funds to pay part of the cost of a malpractice judgment in favor of a
Medicaid patient. It appears that these expenditures would not now
qualify for federal matching funds.
The U.S. House of Representatives committee report for the budget
reconciliation bill of 1987 included a program of Medicaid demonstra-
tions to improve physician participation. As examples of potential dem-
onstrations, the report specifically cited programs to address profes-
sional liability concerns, including assistance in paying premiums (or
ensuring coverage). The proposal was dropped in the final stages of
conference committee negotiation; it may be worth reconsidering.
Further analysis may indicate other ways of easing the access diff~-
culties posed by professional liability concerns. It is important that
feasible policy options that address the access issues generated by mal-
practice concerns be developed and implemented. It would be unfortu-
nate, to say the least, if the national objective of improving maternity
care and birth outcomes among low-income women, a goal embodied in
the initiatives of the Budget Reconciliation Act of 1986 (and 1987),
should founder on the rock of malpractice insurance costs.
REFERENCES AND NOTES
1. Unless otherwise noted, national data on obstetrician-gynecologists are from three
American College of Obstetricians and Gynecologists (ACOG) studies: 1983. Profes-
sional Liability Insurance and Its Effects: Report of a Survey of ACOG's Membership;
1985. Professional Liability Insurance and Its Effects: Report of a Survey of ACOG's
Membership; 1988. Professional Liability and Its Effects: Report of a 1987 Survey of
ACOG's Membership. Washington, D.C.
2. Unless otherwise noted, national data on family physicians are from the American
Academy of Family Physicians (AAFP). 1986. The Family Physician and Obstetrics:
A Professional Liability Study. Kansas City, Mo. The AAFP did a second study, in
1987, but the response rate was much lower than that in the 1986 study.
3. The following state studies (in alphabetical order by state) were reviewed for this
report: Alabama Medical Association. 1985. State of Alabama Survey on Obstetrical
Care; Crump, W., and D. Redmond.1986. Final report: A survey of family physicians
providing OB care. Ala. Med.; Darnell, H. 1986. Current status of family practice
obstetrics in Alabama. Ala. Med. (September):36-38; Gordon, R. J., G. McMullen,
B. D. Weiss, and A. W. Nichols.1987. The effect of malpractice liability on the delivery
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ACCESS T0 OBSTETRICS CARE 95
of rural obstetrical care. J. Rural Health (Arizona) 3:7-13; California Academy of
Family Physicians. 1985. Rural hospital center survey. Memorandum. December 6;
California Medical Association.1987. Professional liability issues in obstetrical prac-
tice. Socioecon. Rep.25, nos.6 and 7; Medical Society ofthe DistrictofColumbia.1985.
Survey of obstetricians; Georgia Obstetrical and Gynecological Society. 1985 and
1987. Manpower surveys; Idaho Medical Association. 1987. Survey of members; Illi-
nois Department of Public Health. 1987. Changes in Availability of Obstetrical
Services in Illinois; Iowa Medical Society and Iowa Academy of Family Physicians.
1985. Survey of family physicians; Kansas Medical Society. 1985. Professional lia-
bility survey. Kans. Med. 43; Bonham, G. S. 1987. Survey of Kentucky obstetrical
practice. University of Louisville, Urban Studies Center, Louisville; Ob/Gyn Society
of Maryland. 1986. Survey; Weissman, C., M. Teitelbaum, and D. Celentana. 1987.
Physicians' practice changes in response to malpractice litigation. Paper presented at
the American Public Health Association annual meeting, October 20 (Maryland);
Massachusetts Ob-Gyn Society. 1986. Survey; Block, M. 1985. Professional Liability
Insurance and Obstetrical Practice. Study commissioned by the Michigan State
Medical Society and the American College of Obstetricians and Gynecologists. Lans-
ing; Minnesota Ob-Gyn Liaison Committee. 1986. Survey; Smucker, D. R. 1988.
Obstetrics in family practice in the state of Ohio. J. Fam. Erac. 26:165-168; Oregon
Medical Association.1987. The Impact of Malpractice Issues on Patient Care: Declin-
ing Availability of Obstetrical Services in Oregon. Portland; Texas Medical Associa-
tion. 1985 and 1986. Professional liability insurance surveys; Virginia Obstetrical
and Gynecological Society. 1985. Survey of Virginia ob-gyns; University of Washing-
ton School of Public Health and Community Medicine.1986. The Effects of Changes in
the Medical Liability Market on Washington Obstetricians. Final Report to the
Washington State Medical Association. Seattle; Rosenblatt, R. A., and B. Detering. In
press. Changing patterns of obstetric practice in Washington State. Fam. Med.;
Rosenblatt, R. A., and C. L. Wright.1987. Rising malpractice premiums and obstetric
practice patterns. Western J. Med. 146:246-248; West Virginia State Medical Asso-
ciation. 1985. Physician survey.
4. In addition to the three ACOG studies and the two AAFP surveys cited above, national
studies include Tietze, P. E., P. S. Gaskins, and M. McGinnis. 1988. Attrition from
obstetrical practice among family practice residency graduates. J. Fam. Prac.
26:204-205; MACRO Systems, Inc. 1986. Medical Malpractice Liability Coverage in
the 1980s: Threat to Patient Access to Health Care? Final Report. Washington, D.C.;
National Governors' Association, Center for Policy Research, Health Policy Studies.
1988. Increasing Provider Participation: Strategies for Improving State Perinatal
Care Programs. Washington, D.C.; Weissman, C., M. Teitelbaum, and L. Morlock.
1988. Malpractice claims experience associated with fertility-control services among
young obstetrician-gynecologists. Med. Care 26:298-306.
5. State of Colorado, Department of Social Services, fiscal year 1989 budget hearings.
6. National Governors' Association. 1988; see note 4.
7. ACOG. 1988, p. 12.
8. National Governors' Association. 1988; see note 4. The report includes discussion of
the methodology used in developing the estimates.
9. U.S. Department of Health, Education, and Welfare. 1973. Report of the Secretary's
Commission on Medical Malpractice. DHEW Pub. no. (OS) 73-89. Washington, D.C.:
Government Printing Office, pp. 658-694. These data do not mean that the poor
experience fewer incidents of malpractice; rather, the author hypothesized that the
poor may be less likely to perceive an experience as a case of malpractice.
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96 MEDICO P~FESSiONAL LAITY: VOICE ~
10. National Health Law Program. 1987. Medical Malpractice: A "Crisis" for Poor Wo-
men. Clearinghouse Review. Los Angeles, pp. 1277-1286.
11. Weissman et al. 1988; see note 4.
12. General Accounting Office (GAO), U.S. Congress.1987. Medical Malpractice: Charac-
teristics of Claims Closed in 1984. GAO/HRD-87-55. Gaithersburg, Md.
13. Retabulation of the GAO data was provided by Laura Morlock, The Johns Hopkins
University. The published GAO data include payout in one year. Morlock retabulated
the data to include total payout over time.
14. Unpublished data on 10 years of malpractice claims were provided by Laura Morlock,
The Johns Hopkins University. Hospital admission data were provided by the Mary-
land Health Services Cost Review Commission.
15. Weissman et al. 1988; see note 4.
16. American College of Obstetricians and Gynecologists. 1988. Hospital Survey on
Obstetric Claim Frequency by Patient Payor Category. Washington, D.C.
17. Kletke, P. R., S. M. Davidson, J. D. Perloff, D. W. Schiff, and J. P. Connelly.1985. The
extent of physician participation in Medicaid: A comparison of physician estimates
and aggregated patient records. Health Serv. Res. 20:503-523.
18. Danzon, P. 1986. The frequency and severity of medical malpractice claims: New
evidence. Law Contemp. Prob. 49(Spring):57-84.
Representative terms from entire chapter:
malpractice concerns
