**1. Introduction**

The professional liability crisis remains a common problem for obstetricians. Approximately 90% of American College of Obstetricians and Gynecologists fellows have been sued at least once and 25% have been sued four or more times. Approximately 15% of obstetricians have ceased obstetric practice because of exorbitant premiums and the prevalence of nonmeritorious claims in this field of practice. The average age at which an obstetrician/gynecologist stops providing obstetrical care is currently 48 years of age; the age at which most physicians approach the peak of judgment and experience.

This current liability crisis is very relevant to all practitioners who care for newborns. Neonatologists, pediatricians, hospitalists, and nurse practitioners all provide critical care to sick newborns in different venues. These newborns are younger, more fragile, often extremely small and the risk of life long chronic disease, pain and disability are significant for these patients. Parents often experience emotional and economic distress when their newborn is in the NICU. These factors have contributed to an increased number of allegations against practitioners of neonatal/perinatal medicine.

Juries tend to have a natural sympathy for disabled children even when allegations are nonmeritorious. In addition, many states exempt minors from the statute of limitations for medical liability which can lead to a physician defending claims 10-20 years after the alleged incident. Capping noneconomic damages in children is difficult. The increase in litigation cases is mirrored by an increase in the awards received by the plaintiff. Today the average jury award for poor obstetric and neonatal outcome exceeds \$3,000,000. Obstetricians pay some of the highest insurance premiums, up to \$300,000 per year in some states. Efforts at tort reform, award caps and the policing of junk science have not been uniformly successful.

The purpose of this Chapter is to identify the etiology, pathology and prevention of common allegations of professional liability for the obstetrician and practitioner of neonatalperinatal medicine. The author has reviewed 100 closed cases of alleged professional liability against obstetricians for causation of poor neonatal outcome and 100 closed cases of alleged professional liability involving practitioners of neonatal perinatal medicine as an expert. These cases were reviewed over a 25 year period (1985-2010). Approximately 75% of

Risk Management in Obstetrics and Neonatal-Perinatal Medicine 271

Non-reassuring fetal heart tones Poor communication between OB's

Nurse spent too long trying to obtain FHT when none were present Inadequate fetal monitoring for prolonged periods of time

Failure to follow-up test results Failure to give antenatal steroids Emergency room triage errors (misdiagnosis of Mirror Syndrome) Misdiagnose pre-eclampsia as gallbladder disease in ER Mother sent home at 39 weeks in

Failure to detect rupture of

Uterine rupture with VBAC Double footling breech delivered

Expected difficult delivery with complicated neonate was not preemptively transferred to a

Delivery of triplet or higher order pregnancy in a level 2 center

Using Pitocin instead of Magnesium Failure to follow Pitocin protocol

Failure to diagnose chorioamnionitis Failure to obtain and document GBS

Patient not instructed exactly when she should go to the hospital for

Table 1. Common Allegations of Obstetrical Professional Liability

Dosing errors with Pitocin

Failure to recognize fetal tachycardia as a sign of chorioamnionitis

Maternal request Physician convenience

Obstetrical nurse failure to interpret

and Anesthesiologists

ominous fetal strip

active labor

membranes

vaginally

status

labor

Shoulder dystocia

tertiary care center

Case Examples N = 100

Postponing aggressive treatment for the next shift Inadequate physician sign out

Failure of midwife to recognize ominous fetal heart tracings Failure of midwife to have appropriate resuscitation equipment and personnel for

Failure to rule out abruption Failure to diagnose HELLP

Diagnostic difficulties due to

Failure of triage nurse and/or house staff to present an accurate picture of the case to

Neonate born with fractured ribs, skull fracture, fractured

Twin pregnancy in which in utero demise of viable twin was due to nonviable twin death

Complicated twin pregnancies, triplets, quadruplets (twin to twin transfusion, significant

Failure to discontinue Pitocin with non-reassuring fetal heart tones and/or hyperstimulation

3%

Late preterm newborns 2%

1%

Congenital anomalies

discordancy) 24 weeker

40%

21%

17%

11%

5%

at change of shifts

home delivery

maternal obesity

the attending

clavicle

syndrome

Cause for Obstetric Allegations

1. Failure to perform a timely C-section

2. Failure to triage mother appropriately

3. Complicated delivery

4. Failure to transport mother to tertiary case center in appropriate timing

5. Pharmacologic

6. Failure to diagnose maternal infection

7. Inappropriate use of labor induction

8. Failure to educate patient

error

the cases were reviewed for the defense and 25% for the plaintiff. Of these, 75% of the cases were settled, 19% were dismissed and 6% went to trial with a favorable jury verdict for the defense in 75% of the trial cases. Based on our experience, we developed an evidence-based work-up that can confirm or refute allegations of acute intrapartum asphyxia sufficient to cause cerebral palsy.
