Doctors spell out risks of childbirth on consent forms

By Carol M. Ostrom
Seattle Times staff reporter

BETTY UDESEN / THE SEATTLE TIMES Drs. Peggy Hutchison, left, and Judy Kimelman hold babies they have delivered. Hutchison is with 7-week-old Marco Rosellini and Kimelman is holding 3-month-old Liam Hutchinson.

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It's a dramatic departure from business as usual: Women facing a normal delivery typically don't sign consent forms until they arrive at the hospital, and then, most are vague and nonspecific.

Because pregnancy can be a scary time for women, full of unknowns and fears, the Seattle doctors believe they should protect easily spooked patients from horror stories of childbirth.

But the doctors' own fears in the medical-malpractice-lawsuit climate, they say, have driven them to take this unusual step.

They say their primary intent is not protection in the event of a suit, and lawyers say the form might not insulate doctors from suits. Instead, the doctors want to force patients — particularly highly educated, perfection-seeking professionals who have never accepted "bad outcome" as an option — to face a stark reality: In pregnancy, there are no guarantees.

"There is some denial that this is probably the most serious, complicated and life-threatening experience that most young women will have in their lifetime," said Dr. Susan Harvey, one of the seven obstetricians/gynecologists at The Seattle OB/GYN Group. They deliver about 1,000 babies a year.

Informed consent A proposed consent form for pregnant patients says, in part: "I recognize that no guarantee can be made as to the health of my baby. I recognize that there are a wide variety of abnormalities that can affect a baby. I understand that some of these defects can be associated with fetal death or severe lifelong disability such as mental retardation or cerebral palsy, requiring continuous care, medical interventions and substantial financial expenses. "I understand that not all complications of labor and delivery are treatable and that current available technology to monitor the fetus in no way guarantees a good outcome. Complications in labor can result in serious consequences to the fetus, including but not limited to bodily injury, permanent severe brain damage, and death."

Patients don't realize that even when doctors do everything right, "you can still have an unfortunate outcome," Harvey said. "We have to lay it all out for patients, because they're so unrealistic."

If patients know the inherent risks, they may be less likely to blame the doctor — or sue, the doctors believe. And while the form likely wouldn't confer bulletproof protection in a lawsuit, Dr. Judy Kimelman, Harvey's colleague, hopes it would educate the jury. A lawyer they consulted said it couldn't hurt. The clinic has faced relatively few lawsuits.

Under siege

Obstetricians across the United States say theirs is a specialty under siege. Some require patients to sign waivers promising not to sue for "frivolous" reasons; a large Connecticut group recently announced it will charge a $500-per-pregnancy "liability surcharge."

Overall, nearly half of claims against OB/GYNs are dismissed, dropped or settled without payment, according to The American College of Obstetricians and Gynecologists (ACOG), which commissioned a professional survey of its members. Of cases that go to court, OB/GYNs win eight of 10.

In most medical-malpractice lawsuits that go to juries, doctors and hospitals win.

But that's not true when the case involves a childbirth gone wrong, according to Jury Verdict Research, which tracks and analyzes national trends. In those cases, juries sided with patients 60 percent of the time in 2002, up from 34 percent two years earlier, the firm said.

The median award nationally in childbirth-negligence cases is now more than $2.2 million, according to Jury Verdict Research. Kimelman said the group's insurance limit is $1 million per occurrence.

"Every single delivery we walk in on, we feel this could be the delivery we lose everything on," Harvey said.

These doctors, like many obstetricians, fervently believe many jury awards in childbirth cases are unjustified. They argue that juries sometimes base awards on injuries to a baby that occurred despite a doctor's best efforts.

Risks

Reed Schifferman, a Seattle lawyer who represents injured patients, said he approves of doctors having frank discussions about risks with their patients. But, he added, "Even if they warn that all sorts of bad things might happen — because sometimes they do — if those bad things that happen are the result of the doctor's poor medical care, the doctor's still responsible."

Ron Perey, a lawyer who has the only current case involving a childbirth against a doctor in the Seattle OB/GYN Group, says all pregnant women should be fully informed of risks, with even more graphic descriptions of rare but dangerous conditions.

Some attorneys believe such consent forms are designed less to educate patients than to create legal defenses for doctors.

In fact, plaintiffs' lawyers say, doctors usually win such cases.

Doctors believe when an injured baby is wheeled into court, "all of a sudden the jury loses their sanity and starts throwing money at the case," Schifferman said. "That's absolute baloney."

Jurors are "not moved by sympathy," he said, and only award money "when the doctor has really screwed up."

Changing attitude

But doctors at the Seattle clinic argue that there's a changing attitude about the risks of childbirth.

These days, when a baby is born with problems, they believe, parents — and juries — look for someone to blame.

It wasn't always that way, the doctors say. Grandmothers of today's pregnant women realized that not every baby would be perfect, and not all would thrive.

Somehow, that changed, the Seattle doctors say.

"The public has been lulled into thinking pregnancy and labor and delivery are without the same risks as having surgery," Harvey said. But in obstetrics, Harvey said, "things happen with minutes of notice, seconds of notice."

In many cases, there's nothing a doctor can do to prevent problems. "We really need people to get that," Kimelman said.

Several months ago, she and her partners hit on an idea: What if they gave obstetrics patients an informed-consent form — one that would actually inform them? What if they listed things that could happen and used the form as a springboard to a frank and educational talk with patients?

The idea was immediately controversial inside the practice. Harvey opposed it at first.

"Here is this wonderful experience, a couple coming to you to share this intense, emotional experience. I didn't want to slap them with a consent form — 'You could die, your baby could die,' " Harvey said. "We all want to be reassuring."

But stark facts were staring the obstetricians in the face: On average, an OB/GYN is sued 2.6 times in his or her career, according to the ACOG survey.

Recently, Kimelman has been stumping for tort reform, frustrated that efforts for change have been stymied politically. Helping educate patients, she argued to her partners, was something they could actually do.

Such an informed-consent form for all patients is highly unusual, said Dr. Gary Hankins, chief of obstetrics at the University of Texas Medical Branch at Galveston, Texas, and a member of ACOG's obstetric-practice committee. Typically, obstetricians go into detail only with high-risk patients or those facing high-risk procedures.

"Do I think it's a good idea to scare the crap out of pregnant ladies? No," he said. "Do I think doctors are being forced into this? Yes!"

For a patient, learning the facts of life, death and possible injury to the baby on the first visit to an obstetrician isn't ideal, he said. "But I think the public at large needs to be educated: Human reproduction is very imperfect."

Statistics show that about 1 in 33 babies is born with a birth defect, ranging from inconsequential to life-threatening.

"The majority of bad things that happen to babies have nothing to do with the time they spend in labor and delivery," Hankins said.

The doctors are still debating how specific their consent form should be. The form, Harvey said, isn't just for patients but for doctors, too: It would force them to focus more on risks — something they shied away from in the past.

"The consensus was: We don't want to scare people away, but we have to do something," Kimelman said.

Carol M. Ostrom: 206-464-2249 or costrom@seattletimes.com

Material from The Associated Press was used in this report.

Copyright © 2004 The Seattle Times Company

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