Jewish World Review August 20, 2004 / 3 Elul, 5764

Rich Lowry

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The war on obstetrics | It wasn't long ago that the obstetrician was celebrated in American culture, on television and in movies, as the reassuring professional who did the work necessary to produce that joyous first wail of a newborn. Now obstetricians are filling a different role — the target of medical liability suits.

Amazingly enough, we have created a legal system that disadvantages people who deliver babies. These aren't tax evaders, corrupt polluters or any other bogeymen you can conjure up. Obstetricians make the unlikeliest of anti-heroes, but they are nonetheless portrayed that way every day in America's courtrooms and, as a consequence, collectively punished for, essentially, their interest in women's health and babies.

The lawsuit-driven crisis in obstetrics has prompted the American College of Obstetricians and Gynecologists to make tort reform its highest legislative priority. The issue deserves all the more scrutiny given that the Democratic ticket features a candidate, John Edwards, who made the fortune that funded his political career partly by suing obstetricians. The Democratic Party has, more firmly than ever, aligned itself with the vultures feasting on obstetrics.

Entering the field is now basically signing up to be sued. According to ACOG, 76 percent of its membership reports being sued at least once. Nearly 60 percent have had two or more claims filed against them, and 41 percent have been sued three or more times. On average, OB-GYNs have 2.6 claims filed against them during their careers. It takes an average of four years for a claim to be resolved, and 13 percent of claims take seven years or more.

No wonder one in seven members of the ACOG has stopped practicing obstetrics. With insurance premiums in some states hitting more than $100,000 a year, it's a profession that doesn't pay. The number of medical students entering the specialty has fallen in the past three years. "We're witnessing a slow death of an honorable segment of the medical profession," says George Mason University law professor Michael Krauss, who has studied the issue. Those still in the field try to reduce their legal exposure by decreasing the amount of high-risk obstetric care they engage in (which often involves poor women), and performing fewer deliveries.

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Many of the lawsuits are over children with neurological damage such as cerebral palsy. The theory often is that a doctor's negligence during childbirth kept the baby from getting enough oxygen. Edwards successfully sold this theory to juries. It is problematic at best.

A recent ACOG study concluded that less than 10 percent of cases of neurological impairment were caused by events during labor, and even in most of those cases the problems were not preventable. Deliveries by Caesarian section have increased from 6 percent in 1970 to 26 percent today — to make it harder for a trial lawyer to argue that a C-section would have prevented a baby's disability. But a study last year found that cases of cerebral palsy had remained steady despite the increase in C-sections.

Of course, there are instances of real medical malpractice, which should be compensated. But it cannot be the case, as the pattern of lawsuits now suggests, that nearly every obstetrician in America is incompetent and negligent. Krauss points out that medical insurance rates for OB-GYNs don't differ according to experience or prior suits the way, say, auto insurance rates do. That's because there is no predicting who will be hit by the pervasive and random suits.

The lawyers who game this system are simply scoundrels. Not just in how they coax millions out of the American health-care system, but in how they play on the understandable emotions of heartbroken and scared parents, telling them an alluring lie: that no tragedy in this life is unpreventable, that nothing goes wrong without it being someone's fault, a fault that can be precisely calibrated and paid out in a settlement or jury award.

America should make itself safe again for doctors who deliver babies.

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© 2004, King Features Syndicate