The Society of OB/GYN Hospitalists (SOGH) defines an OB/GYN hospitalist as “an obstetrician/gynecologist who has focused their professional practice on care of a hospitalized woman,” and this may include inpatient or Emergency Department gynecological care.¹ By now, it is well accepted that an OB/GYN’s risk of becoming involved in a malpractice suit is the highest of all medical specialties. As noted in a widely cited 2011 article in the New England Journal of Medicine, 74% of physicians practicing in the specialty were projected to face a claim of some type by age 45.² In comparison, 11% to 12% of OB/GYN physicians incur a claim, with or without payment, each year, with median and mean payments being well into six figures nationally.² Interestingly, a recent study of malpractice claims in Saudi Arabia between 2008 and 2013 found that 24.6% of them were OB/GYN related.³ It seems that the risk of OB/GYN-related malpractice is not confined to the United States. Of those cases in this study that are OB/GYN related, more than 80% of them were delivery room related.

Some of those types of claims, such as shoulder dystocia and fetal distress, are consistently associated with high-value claims occurring in the United States. In a 2012 study by the American Congress of Obstetrics and Gynecology (ACOG) for the time period of January 1, 2012 to December 31, 2014, survey respondents reported that neurologically impaired infant cases were more likely to be the primary allegation in obstetrics claims (constituting 27.4% of the total). Of these claims, 55.2% were delivered by C-section; 40.5% were delivered vaginally, and 2% were delivered via Vaginal Birth After Cesarean (VBAC).⁴ Not surprisingly, these kinds of claims, if liability is found, can result in significant indemnity payments to the infant and sometimes the mother (for negligent infliction of emotional distress) that reach the millions of dollars due to the child often suffering from lifetime impairment.

While the studies are informative, none of the general reflections of the risk that OB/GYN physicians face discuss particular risks faced by hospital-based OB/GYN physicians (i.e. hospitalists). However, because OB/GYN hospitalists face many of the same challenges that specialists on call may face, risk-mitigation strategies must include the same techniques employed by both general medicine hospitalists and OB/GYN hospitalists on call. Given these points, in analyzing how hospital-based OB/GYN physicians should attempt to mitigate their risk of becoming involved in a malpractice suit, a review of the basics of malpractice is necessary.

In most states, medical malpractice is a variation of common (court-created) negligence law. Therefore, in order for a patient to recover damages for the negligent acts of a treating physician, that patient must demonstrate four points: that a physician had a duty of care to her or him; the physician breached the duty of care (i.e. the standard of care); the breach of that duty was, more likely than not, the cause of an injury to the patient; and the patient sustained pain and suffering, economic damages, or both as a result of the breach.⁵

In nonlegal parlance, these stipulations generally mean that a treating physician failed to provide appropriate treatment to a patient and the patient was injured by that failure. A jury determines whether the standard of care has been breached by hearing testimony from expert witnesses retained by both parties, as most issues regarding medical negligence (with the exception of informed consent) are deemed by the courts to be beyond the expertise of lay jurors to determine without the assistance of such testimony. If the jury determines that there has been a breach of the standard of care, and that this breach resulted in injury to the patient, their remaining task is to determine the amount of damages the patient is entitled to, subject, in many states, to certain limitations on the amount of pain and suffering damages (known as general damages) that may be awarded.⁶

Medical malpractice cases generally involve claims of professional errors and omissions committed in the clinical setting. Most cases are based on professional negligence principles, as defined later in this chapter, or a subset of negligence, commonly referred to as lack of informed consent.

INFORMED CONSENT

For the nonhospital-based practitioner, the fact of providing a patient with the opportunity to give informed consent is rarely an issue. Most practitioners realize that prior to commencing any procedure or treatment plan, a patient must be informed of the risks, benefits, and alternatives to any such treatment or procedure, and sign a document giving consent. Although informed consent is most often associated with surgical and other invasive procedures, it applies to all treatments that involve risks that are not readily appreciated by the lay patient. Where issues have arisen in the author’s experience, they are not the result of the consent discussion having failed to occur, but issues of adequacy of documentation, including timing.

For a hospital-based practitioner who may be seeing a patient in an urgent situation, consent and documentation of consent can be tricky. First, is the practitioner seeing the patient in a routine, urgent, or emergent situation? In an emergency, many states deem there to be implied consent on the part of a patient who is incapacitated or otherwise unable to provide such consent, for interventions intended to save a life or preserve movement, limbs or other body functions. However, that implied consent may not extend to surgical intervention for fetal distress. For example, the law may not allow a surgical procedure to be performed on a mother who has the capability and capacity to provide informed consent, absent that consent, where the emergency is potential fetal demise.⁷

In nonemergent situations, it is imperative for a practitioner to ensure that a patient has consented to a procedure before undertaking it. Failure to do so can constitute a technical battery, subjecting the practitioner to punitive damages, which are often not covered by malpractice insurance. Following the consent conversation, the appropriate documentation (whether paper or electronic) should be completed before the intervention is initiated. Any documentation that is created after the fact, especially in the era of the electronic health record (EHR), is inherently suspect should litigation arise. Further, the practitioner should document whether the patient was under the effect of any analgesia or anesthetic agents at the time of the conversation. The presence of such medications may call into question whether the patient had the actual capacity to provide a legally adequate informed consent, e.g. was the patient able to understand the information provided and make an informed consent. In addition, the practitioner must be increasingly aware of potential language barriers when consenting a patient. If there is any doubt about the patient’s English fluency, a live or remote translator should be utilized. Note that it is not appropriate to have a family member interpret for the patient, as this often results in the omission of critical facts and information.