The authors utilize stakeholder theory to provide a new analysis of the professional liability crisis, by identifying the major stakeholders in our current system of professional liability, their respective obligations and self-interests, and how these interests are advanced and constrained by the current system. This stakeholder analysis reveals a core ethical obligation of all stakeholders: the preservation of the integrity of our current judicial system. The adverse impact of the pursuit of stakeholder self-interests, rather than fulfillment of their core, shared ethical obligation, on achievement of the goals of the current system, the deterrence of unsafe practice and compensation of injured patients, is then identified. The authors argue that approaches to reform of professional liability in obstetrics be based upon the common obligation of the stakeholders to fulfill the goals of the system, because attempts to align the myriad self-interests of the stakeholders will be futile.
The impact of the professional liability crisis on our specialty is well recognized. Traditionally, obstetricians and those who practice similarly high-risk medical specialties have framed the issue of professional liability or, as often labeled, the “medical malpractice crisis,” as a conflict between physicians and plaintiff’s attorneys. Obstetricians view themselves as victims, held responsible for poor clinical outcomes that cannot reliably be prevented and unfairly burdened with ever-increasing insurance premiums. Plaintiff’s attorneys and patient advocates believe instead that these same physicians are protected by a system that is unwilling or unable to take steps to prevent avoidable injury to vulnerable patients. This binomial account, while often embraced by many obstetricians and attorneys, is woefully inadequate in that it fails to take into account the many other stakeholders, ignores the tort system’s ultimate purpose and goals, and overlooks a core, shared ethical obligation that provides ethical justification for needed reform.
This paper will use stakeholder theory to explore that inadequacy and to evaluate our current system of professional liability by identifying the major stakeholders, many of whom are not readily apparent, by enumerating their major self-interests, and identifying how these self-interests are constrained by the core ethical obligation that all stakeholders share to preserve the integrity of the system by promoting its purpose and goals.
Multiple stakeholders
Stakeholder theory identifies the multiple parties whose interests can be advanced or harmed by change in practice and policy, defines the interests of the parties and how those interests are advanced or constrained, and defines the obligations of parties affected by practice and policy. Stakeholder theory was introduced as a tool of corporate leadership and management by Freeman and has been adapted for health care leadership and management. Ethical conflict is understood to be a function of incompatible interests or incompatible interests and obligations.
There are at least 12, not just 3, groups of stakeholders, with multiple subgroups, in this system ( Table 1 ). The stakeholders are: patients and patient’s families and dependents; practicing physicians, physician leaders, educators, and residents; plaintiff and defense attorneys; health care organizations and their leadership and risk managers; insurance companies; professional organizations of physicians; professional associations of attorneys; judges, juries, legal support personnel, and organizations providing services to them; expert witnesses; state licensing boards and regulatory agencies; government officials; and society. It is apparent from Table 1 that these groups of stakeholders have conflicting interests ( Table 2 ) that are not mutually satisfiable. Moreover, any proposed reforms seeking to align these myriad and incompatible interests are doomed to failure. Put colloquially, someone’s ox will always be gored.
| Stakeholder | Interests | Interests advanced | Interests constrained | Obligation |
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| Patients and their families/dependents |
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| Physicians, physician leaders, educators, residents |
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| Plaintiff and defense attorneys |
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| Health care organizations, organizational leadership, risk managers |
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| High administrative costs |
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| Insurance companies |
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| Professional associations of physicians |
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| Diversion of resources from professional activities |
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| Professional associations of attorneys |
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| Diversion of resources from professional activities |
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| Judges, juries, legal support personnel, and organizations providing services to them |
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| Expert witnesses |
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| State licensing boards and regulatory agencies | Maintain reputation for fair and effective monitoring of medical practice; in some states, this includes expert witnessing |
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| Government officials |
| Provide good constituent services |
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| Society |
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| Maintain integrity of judicial system (patient safety and fair compensation) |
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