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ACOG Professional Liability Assessment/Making the Case for Reform

by E. Dale Burrus, JD, LLM on September 5th, 2012

The American College of Obstetrics and Gynecologists (ACOG) published its professional liability survey on professional liability assessment on September 5, 2012. ACOG has conducted 11 surveys since 1983. The 2012 assessment included the years 2009 through 2012. The report of the survey divided the country into eleven districts and Florida.

In Texas (Division XI), following six years of tort reform, the survey revealed that 20.7% of the reporting physicians had experienced one claim during the three year period and 1.8% reported three claims. The physicians surveyed reported 102 obstetrical claims and 58 gynecological claims during the three year period.

The most frequent allegations in the area of obstetrics included: stillbirths/neonatal death (19.6%); delay/failure to diagnose (13.7%); maternal death (13.7%); and major maternal injury (11.9%). Additional factors related to these claims were infection, electronic fetal monitoring, shoulder dystocia, and lack of communication between providers.

There were 58 gynecological claims characterized as major patient injury (27. 6%); minor patient injury (24.1%); delay in or failure to diagnose (20.7%) and foreign object (10.3%). Surgical complications and hysterectomy-related complications were the primary additional factors.

In Texas, 46.1% of the cases were dropped without payment and 40.4% were settled with payment. Only 6% were tried to a jury. More than half of the responders had made changes to their practices for fear of medical malpractice claims and less than half had made changes because of the availability of liability insurance.

By way of comparison, Florida also had tort reform passed in 2003 but with higher noneconomic caps ($500,000 and $1,000,000 in catastrophic cases compared to Texas’ $250,000 noneconomic cap). Florida physicians reported 124 obstetric claims and 74 gynecologic claims.  Additional factors in obstetrics include prematurity, actions by a nurse, and preeclampsia.  Fifty-seven percent of claims were settled with payment and 14% were completed through a jury trial.  Almost 75% of physicians surveyed stated they had changed their practice due to the threat of medical litigation.  Florida’s reform statute currently is being reviewed by its Supreme Court.

In New York, where there is no tort reform, the physicians reported 426 obstetric claims and 236 gynecological claims. Interestingly, approximately 70% of the reporting physicians stated they made changes to their practice due to the threat of medical malpractice.

The results make clear that tort reform has reduced the malpractice claims in states where reform has been put into place. How much it has changed the physician’s perception of a potential threat is not as clear.

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