Have you heard that “liability pressure” compels doctors to increasingly deliver babies by cesarean section?
Have you wondered how it could be that the law, which is supposed to protect patients’ rights and enforce healther providers’ duties of care, would drive doctors toward imposing costly, risky, and unnecessary surgeries on birthing women?
Read Part 4 of the amicus curiae brief filed by Human Rights in Childbirth, the Birth Rights Bar Association, ImprovingBirth.org, and the International Cesarean Awareness Network, in coalition with National Advocates for Pregnant Women and Choices in Childbirth, for Rinat Dray’s New York lawsuit for a forced cesarean section. For more information about her case, and the first three sections of this brief, see:
IV. Economic and Liability Factors Are Proven to Incentivize Obstetricians to Impose Interventions Without Medical Necessity.
Obstetric providers recommend intervention on the basis of numerous non-clinical factors, including financial incentives; intervention rates therefore vary widely by provider. When patients’ clinical needs are not driving providers’ recommendations, patients need a clear legal right to refuse, which can be assured only if courts impose meaningful damage awards for violations of informed consent and refusal.
A. In a Maternity Care System with a C-Section Pandemic and Proven Economic Incentives at Play, the Right to Refuse Treatment has Never Been More Critical. An Enforceable Legal Right to Refuse Interventions is a Birthing Woman’s Only Shield Against Dysfunctions in Maternity Care.
It is widely acknowledged that provider behavior is affected by economic incentives, including perception of liability risk. Economic incentives and liability incentives can lead to good or bad practices and outcomes. The public relies on courts to make rules that deter harm and incentivize the careful assessment of risks and benefits in decision-making. Courts must attune themselves to the economic factors and liability incentive effects of cases before them that are relevant to obstetric practice.
Empirical studies show – and doctors confess – that hospitals perform c-sections for non-medical reasons including financial gain, time convenience, and perceptions of liability pressure.[2; see footnote]
My doctor came in to the room at 11:45pm. I specifically remember what time she came in, because she said that I would probably want to have my baby within the next 15 minutes because it was going to be Friday the 13th at midnight. She yelled at me to push, repeatedly, as I had contractions. I remember looking down and seeing her grab scissors from the tray beside her. I asked her what she was doing (mid contraction) and she didn’t respond. I said “no episiotomy” and continued to push through my contraction. She then looked up at me and said “it’s okay, you didn’t even feel it. Now you can have your baby quickly.” Then my son was born at 11:53pm, 7 minutes before Friday the 13th. … I truly believe that she was just tired and wanted to go home, and I was taking too long to push, even though I had been pushing for less than an hour which is extremely common for first time mothers. – K. K. (TX)
I had an endoscopy this summer and I had flashbacks pretty bad [from what happened at my baby’s birth], and the anesthesiologist asked me what was wrong. When I explained, he was angry, and told me they were all a bunch of greedy buggers over at that hospital. – P. B. (NV)
The fact that doctors perform unnecessary surgery for financial gain or time convenience does not prove their collective or individual moral turpitude, only their very human response to economic incentives. When a provider decides whether to recommend an intervention for a given patient, financial considerations and time-convenience factors likely operate on a subconscious level. While higher costs and longer inpatient stays for surgical deliveries benefit hospitals more directly than individual doctors, these institutional economic forces can translate into imperatives that constrain doctors from providing individualized care, or into a medico-cultural argument that “this is the way we do it around here.” On a macro level, these forces play out in significantly higher c-section rates in for-profit medical settings around the world.[3; see footnote]
From the perspective of individual doctor-patient encounters, the proven role of non-clinical factors in recommendations for surgery is ethically problematic, as is the lack of transparency about these factors in discussions with patients about their care. While economic pressures and incentives faced by physicians may drive them to recommend surgery that patients do not need, doctor and patient alike must understand unequivocally that the patient can decline.
Doctors’ recommendations for intervention, including c-section, are colored also by their own perspective and values. Studies show that obstetricians choose cesarean section deliveries for themselves in higher numbers than the general population, and are more likely to undervalue physiological birth while considering cesarean delivery a good solution to “perceived labor and birth problems.” If providers believe that cesarean delivery is a good choice and vaginal birth is unnecessary and undesirable, they may pressure patients on the belief that refusal of surgery is an unnecessary choice for vaginal birth.
In 2007 I gave birth to healthy twin boys. I opted for a vaginal birth…. My birth moved quickly and without any complications. I was forced to birth in a surgical suite, just in case. Baby A was born vaginally, after two pushes. I was allowed to hold him for about 30 seconds before I told to focus on birthing baby B. After confirming that baby B was head down and descending, the OB reached for a vacuum to speed up the delivery. I protested, stated that if there was no danger or concern about baby, I didn’t want have a vacuum assisted birth of baby B. The OB stated that she didn’t have all day to wait for the baby to move down and I was taking up an OR with my twin birth. She also stated I could’ve saved myself the trouble and had a C-section. She proceeded to use the vacuum, without consent, causing tearing in my vaginal wall.” – M. A. (TX)
The multiplicity of factors that influence each obstetric provider’s decision-making process are reflected in the significant variability of protocols and intervention rates across states, hospitals, and individual doctors. Studies show c-section rates ranging from 7.1 – 69.9% across U.S. hospitals. These variations are not reflected in differences in maternal diagnoses or pregnancy complexity of individual patients. From the consumer perspective, this means that a woman could bring her pregnancy to five different doctors or hospitals and receive five different recommendations for induction, cesarean, or episiotomy.
Maternity care’s variability of practice, and the ubiquitous overuse of interventions that profit the provider at the patient’s expense, might reasonably lead an informed consumer to actively exercise her right to informed consent and refusal as she navigates the health care system. Women need to know that they have a legal right to be supported as the authority in the decisions about their care. All participants bring a constellation of issues, values, and experiences into the decisions of childbirth, but informed consent and refusal means that the birthing woman, like all health care patients, has the right to weigh all the factors at stake and make the final call.
Because a stranger with credentials assumed that he knew what was best for my body, I had to pay for a medical procedure that I did not want, I was put at an increased risk for infection, and I was denied the privilege of feeling my baby being birthed. – R. M. (NE)
B. Provider Perception of Liability Risk Currently Reflects Perverse Incentives. Courts Must Find Liability for Forced Interventions in Order for Providers to See The Violation of Informed Consent and Refusal as a Liability Risk.
Obstetric providers experience liability risk as a heavy pressure in their practice. Perceptions of risk turn into hospital policies that tie doctors’ hands from providing individualized care. Sometimes doctors turn to hospital lawyers and administrators for advice or assurance. It is not apparent that the hospital attorney who approved Ms. Dray’s forced surgery perceived the violation of her right of informed consent and refusal as a liability risk. Whatever liability analysis directed Ms. Dray’s care seemed to assume that the doctor’s risk assessment trumped the patient’s, and that a competent woman’s explicit non-consent could be overridden without a court order.
Doctors commonly report a strong perception that liability mandates the overuse of interventions in maternity care, citing these liability concerns as a significant driver of the rising c-section rate. A series of studies show that the role of liability pressure is in reality far more modest. Doctors are not necessarily rationally responsive to litigation, nor do c-section rates fall with tort reform. Nevertheless, doctors report a strong belief in liability pressure, and perceptions about liability risk shape discourse about problems and solutions in maternity care.
If liability is even just one factor in obstetric decision-making, it should incentivize careful provision of the health care support each woman needs as she is giving birth. It should direct doctors to utilize interventions at the moment when a careful provider would recognize that they are needed, while encouraging them to keep births healthy if they are healthy. It should call on doctors to remember their fundamental medico-legal relationship and obligation to the patients they are serving: the duty of informed consent and refusal.
Liability incentives in obstetrics currently do not incentivize good care. For this reason, judicial action is urgently needed. Reports on the role of liability pressure in obstetrics rest on an assumption that providers can protect themselves from liability risk if they impose interventions, including cesarean surgery. A liability rule that inclined doctors toward cesarean delivery might make sense if cesarean surgery carried no risks or costs, and vaginal birth were risky and dangerous. But that is not what the evidence shows. When cesarean surgery is medically needed, it can save lives. But when it is not needed, it carries a long list of risks and costs, including a significantly elevated risk of maternal death. Courts must recognize that women are giving birth in environments where doctors claim that “liability” compels them to push for a surgical birth that happens to profit and convenience the hospital, but imposes risks on mother[14; see footnote] and baby,[15; see footnote] up to and including the risk of death. Obstetric providers currently perceive a “liability” mandate that urges intervention and ignores informed consent and refusal, while failing to incentivize judicious decision-making or health care that optimizes maternal and infant health. Instead, the perceived rule accrues profit to the provider while externalizing to the mother and baby the interventions’ short- and long-term costs, as well as the risks.
1. Providers Should Not be Held Legally Responsible for Patients’ Informed Decisions.
When the day comes that courts hold providers liable for violations of women’s right to informed consent and refusal in maternity care and, moreover, impose damage awards that recognize the individual and social significance of the harm, doctor-patient dynamics in obstetrics will be liberated from perverse incentives and reorient toward woman-centered care. Along with the right to informed consent comes responsibility for the decisions of care. Providers deserve assurance that their responsibility ends where their patients’ rights begin. Legal reinforcement of informed consent and refusal must cut both ways: just as courts must find liability for violations of women’s right to consent on the basis of information and advice, courts must also protect doctors from liability in cases where they are blamed for a woman’s informed choice. Decisions that hold doctors or midwives legally responsible for a woman’s informed decisions undermine the right to consent for all patients, and leave doctors vulnerable for providing respectful support. When doctors honestly share their knowledge of risks and benefits, and support women in the decision at stake, they must not later be found liable for that decision on the theory that the patient lacked the expertise to assess and understand the risk. Informed consent and refusal rests upon the assumption that, despite the esoteric nature of medical knowledge, ordinary people can assess their medical alternatives and make decisions about them—including decisions to go against doctors’ advice.
How much would change in childbirth, if it were clear to everybody in the room that the birthing woman has the right to be supported and respected in all decisions about her care? As the stories of these women and many others have suggested, the effect could be transformative in reducing intervention rates as well as disrespect and abuse, and in improving maternal health in the fullest sense of the term.
As Justice Cardozo affirmed in Schloendorff, liability in damages is the mechanism through which the human right to autonomy in health care decision-making becomes a legally enforceable right. We call on the Court to protect that right in a maternity care system in which it is in critical need of reinforcement.
See, e.g., Richard A. Posner, Economic Analysis of Law 157-214 (7th Ed., 2007); Louis Kaplow & Steven Shavell, Economic Analysis of Law, Handbook of Public Economics, Vol. 3 (Alan J. Auerbach & Martin Feldstein, eds., 2002).
See, e.g., Emmett B. Keeler & Mollyann Brodie, Economic Incentives in the Choice between Vaginal Delivery and Cesarean Section, 71 The Milbank Quarterly 365 (1993) (finding that pregnant women with private, fee-for-service insurance have higher C-section rates than those who are covered by staff-model HMOs, uninsured, or publicly insured); Jonathan Gruber & Maria Owings, Physician Financial Incentives and Cesarean Section Delivery, 27 RAND J. Econ. 99 (1996) (analyzing the correlation between a fall in fertility over the 1970-1982 period and the rise of cesarean delivery as an offset to lost profit); H. Shelton Brown, 3rd, Physician Demand for Leisure: Implications for Cesarean Section Rates, 15 J. Health Econ. 233 (Apr. 1996); Joanne Spetz et. al, Physician incentives and the timing of cesarean sections: evidence from California, 39 Med. Care 535 (June 2001); David Dranove & Yasutora Watanabe, Influence and Deterrence: How Obstetricians Respond to Litigation against Themselves and their Colleagues, 12 Am. L. & Econ. Rev. 69 (2010) [hereinafter Dranove] (finding a short-lived increase in cesareans following the initiation of a lawsuit against obstetrician or colleauges); Lisa Dubay et al., The impact of malpractice fears on cesarean section rates, 18 J. Health Econ.491 (Aug. 1999) [hereinafter Dubay] (finding that physicians practice defensive medicine in obstetrics, resulting increased cesarean sections).
See, e.g., Nathanael Johnson, For Profit Hospitals Performing More C-Sections, California Watch (Sept. 11, 2010), http://californiawatch.org/health-and-welfare/profit-hospitals-performing-more-c-sections-4069 (“women are at least 17 percent more likely to have a cesarean section at a for-profit hospital than at one that operates as a non-profit”); Elias Mossialos et al., An Investigation of Cesarean Sections in Three Greek Hospitals: The Impact of Financial Incentives and Convenience, 15 Eur. J. Pub. Health 288 (2005) (“[P]hysicians are motivated to perform CS for financial and convenience incentives.”); Hannah G. Dahlen et al., Rates of obstetric intervention and associated perinatal mortality and morbidity among low-risk women giving birth in private and public hospitals in NSW (2000–2008): a linked data population-based cohort study, 4 BMJ Open e004551 (2014); Piya Hanvoravongchai et al., Implications of Private Practice in Public Hospitals on the Cesarean Section Rate in Thailand, 4 Hum. Res. Health Dev. J. (Jan.-Apr., 200-), available at http://www.who.int/hrh/en/HRDJ_4_1_02.pdf (concluding that care in a private hospital includes higher rates of intervention, higher rates of neonatal morbidity and no evidence of reduction in perinatal mortality); Kristine Hopkins et al., The impact of payment source and hospital type on rising cesarean section rates in Brazil, 1998 to 2008, 41 Birth 169 (June 2014) (noting that publicly funded births in public and/or private hospitals reported lower c-section rates than privately financed deliveries in public or private hospitals).
See Raghad Al-Mufti et al., Obstetricians’ personal choice and mode of delivery, 347 Lancet 544 (Feb. 24, 1996).
 Michael C. Klein et al., Attitudes of the new generation of Canadian obstetricians: how do they differ from their predecessors?, 38 Birth129-39 (June 2011).
 Katy B. Kozhimannil et al., Cesarean Delivery Rates Vary Tenfold Among US Hospitals: Reducing Variation May Address Quality and Cost Issues, 32 Health Aff. 527 (Mar. 2013).
 Katy B. Kozhimannil et al., Maternal Clinical Diagnoses and Hospital Variation in the Risk of Cesarean Delivery: Analysis of a National US Hospital Discharge Database, PLOS Medicine (Oct. 21, 2014), http://www.plosmedicine.org/article/info%3Adoi%2F10.1371%2Fjournal.pmed.1001745.
See, e.g., Sakala, Least Promising, supra note 39, at e16.
See, e.g., Dubay, supra note 42.
 Janet Currie & W. Bentley MacLeod, First Do No Harm? Tort Reforms and Birth Outcomes, 123 Q. J. Econ. 795 (2008); see also Dranove, supra note 42.
 Jeffrey Klagholz & Albert L. Strunk, Overview of the 2009 ACOG Survey on Professional Liability, 16 ACOG Clin. Rev. 13(2009); Richard Hyer, ACOG 2009: Liability Fears May be Linked to Rise in Cesarean Rates, Medscape Medical News (May 20, 2009), http://www.medscape.com/viewarticle/702712.
See, e.g., Sakala, Least Promising, supra note 39, at e15.
 Catherine Deneux-Tharaux et al., Postpartum maternal mortality and cesarean delivery, 108 Obstetrics & Gynecology 541 (2006).
See Henci Goer, Do cesareans cause endometriosis? Why case studies and case series are canaries in the mine. Sci. & Sensibility (May 11, 2009), http://www.scienceandsensibility.org/do-cesareans-cause-endometriosis-why-case-studies-and-case-series-are-canaries-in-the-mine/; Anne K. Daltveit et al., Cesarean delivery and subsequent pregnancies, 111 Obstetrics & Gynecology 1327 (2008).
See James M. Alexander et al., Fetal injury associated with cesarean delivery, 108 Obstetrics & Gynecology 885 (2006); Anne K. Hansen et al., Risk of respiratory morbidity in term infants delivered by elective caesarean section: Cohort study, 336 Brit. Med. J. 85 (2008); March of Dimes, Analysis shows possible link between rise in c-sections and increase in late preterm birth (Dec. 16, 2008), http://188.8.131.52/24497_25161.asp.; Astrid Sevelsted et al., Cesarean Section and Chronic Immune Disorders, Pediatrics (2015).
 Steve Lash, Hospitals: $20.6M Award Could Spur C-Sections, The Daily Record (Dec. 7, 2014), http://thedailyrecord.com/2014/12/07/hospitals-20-6m-award-could-spur-c-sections/.
105 N.E. at 93.