Issue: January 2015
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Mothers, Infants, and Obstetrical Injuries: Labor and Delivery Liability Risks

Introduction

Liability Risks for Labor and Delivery

Although childbirth is a “joyous and safe experience” for most mothers in the United States, the U.S. lags behind other industrialized nations in healthy births, and the reasons are not clear.

 

There is no guarantee of a perfect outcome in childbirth, even with excellent medical care. Up to 90% of obstetrician-gynecologists have been sued at least once, and obstetrician-gynecologists on average are sued 2.7 times during their careers.

 

A recent study in Britain indicated that labor and delivery at home with a midwife or at a birthing center had better outcomes than those at a hospital, where there was a higher incidence of epidurals, cesareans, and complications.

 

Attorneys, physicians, midwifes, nurses, hospitals, insurers, and other potential parties to the litigation should be aware of the types of lawsuits and other liability issues that arise in connection with injuries occurring to a mother or infant during labor and delivery.


The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed to establish medical malpractice or negligence related to a patient’s labor and delivery? And, what is a potential strategy for the attorney to employ?

Physicians:

How can liability for medical malpractice be avoided for an obstetrical injury occurring during labor and delivery? And, what is a potential strategy for the physician to employ?

Insurers:

Can a payout under a medical malpractice liability policy be avoided by proof that the health provider was not negligent or there was no coverage for the provider’s actions related to a childbirth injury? And, what is a potential strategy for the insurer to employ?

Employers:

Can an employer be subject to liability for a health provider’s negligence or medical malpractice involving labor and delivery? And, what is a potential strategy for the employer to use?


Practice the Technique: Checklists

Attorneys:

Check this list of facts and circumstances tending to show a provider’s liability for malpractice or negligence involving a patient’s labor and delivery.

Physicians:

A physician should review the items on this list when defending against claims of malpractice or negligence involving a patient’s labor and delivery.

Insurers:

The insurer should check these “red flags” and inconsistencies when investigating a claim of medical malpractice or negligence involving childbirth.

Employers:

Use this checklist to determine if an employer, such as a hospital or health care facility, may be held vicariously liable for the actions of a health care provider employee or agent during a labor and delivery.

Expert Analysis

What Proof Must Be Presented To Defend a Fetal Monitoring Malpractice Claim?

Thomas P. Sartwelle, LL.B.; James C. Johnston, MD, JD

How Can Common Labor and Delivery Malpractice Actions Brought Against Midwives Be Avoided?

Mamie Guidera, CNM, MSN, FACNM

How Can Causation Be Established in a Labor and Delivery Malpractice Action?

James M. Wheeler, MD, MPH, JD

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, may be mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.   


Reasons To Reach Settlement

The following are reasons why the attorney, physician, insurer, or employer would want to reach settlement, and not take the action to trial.


Reasons To Go To Trial

The following are reasons why the attorney, physician, insurer, or employer would want to take the action to trial.  


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in malpractice or negligence cases involving labor and delivery?



Medical Examples

Obstetrics and Childbirth

This section provides detailed medical information on labor and delivery. Covered are the initiation of labor; high risk deliveries; anesthesia and other drugs; monitoring of the fetus and mother; stimulation of labor; false labor, stages of labor, and vaginal delivery; delivery using forceps or vacuum; cesarean delivery; midwifery; and post delivery. Also mentioned is the mother’s ability to work during pregnancy and after delivery.  



Law and Medicine Resources

Law and Medicine Resources

Provided is a listing of law and medical resources for further information on labor and delivery.


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Mothers, Infants, and Obstetrical Injuries: Labor and Delivery Liability Risks

Table of Contents
Introduction

Expert Analysis
   Thomas P. Sartwelle, LL.B.; James C. Johnston, MD, JD
   Mamie Guidera, CNM, MSN, FACNM
   James M. Wheeler, MD, MPH, JD

The Perspectives: Improve Your Strategy
   Attorneys
   Physicians
   Insurers
   Employers and Risk Managers

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist

Alternative Dispute Resolution

Reasons To Reach Settlement

Reasons To Go To Trial

Jury Awards and Settlements

Obstetrics and Childbirth

Law and Medicine Resources