Threat of Malpractice

When any of us embark on a career, especially as healthcare professionals, we do not expect to spend time in a courtroom, someday, accused of negligence and forced to defend the care we have provided. While I do not support a position that the risk of being sued for medical or midwifery negligence should be obsessively on our minds, I do believe that legalities, standards, and responsibilities surrounding practice should keep us prepared for unanticipated legal challenges.

Litigation awareness can be anxiety-provoking and something we would rather ignore. Despite this tendency, developing a deeper understanding of medical/legal issues, as well as mitigating risk in practice, can only help in avoiding future involvement with the legal system. Basic medical-legal knowledge can be helpful. Understanding select legal liability concepts, particularly in the context of complex workplace issues, can provide critical insight and perspective. Knowledge may assist you to make informed choices and avoid the unthinkable, that your care is implicated in the death or permanent harm to a mother or her infant.

Verdicts May Favor Defendants

There is a favorable legal reality that exists for defendants involved in medical negligence lawsuits. If you are sued for negligent patient care, statistics derived from tried cases and research regarding juror bias reveal that defendants are unlikely to be found liable by a jury, even when there is strong evidence of malpractice. In the aftermath of medical negligence claims, injured parties prevail at trial only a fraction of the time (around 30% or less).

Plaintiffs’ verdicts are relatively rare, even if the evidence supports substandard care. Studies of juror bias indicate that individuals may have ingrained points of view and prejudices that affect their understanding of the evidence. As an example, it’s not unheard of for jurors, drawn from a defendant’s own community, to be overtly (or unwittingly) sympathetic to local malpractice defendants, choosing to disregard strong evidence against them. It is also known that jurors can be reluctant to find against doctors and other healthcare professionals, especially those from their own communities.

Juror Bias

Efforts are made during jury selection to dismiss individuals who may be biased, but it is an imperfect process. A common defense argument in medical malpractice litigation is based on: “the unpredictability of medicine”. Juries often find this convincing. Although potential juror bias can be advantageous for healthcare defendants this, alone, should not be overly reassuring or suggest that you avoid awareness of your legal risk in practice.*

The experience of being sued, and eventually proceeding to trial, can be devastating. Co-workers (and even co-defendants) may not be supportive and may avoid you during the process. Gossip and assumptions about your care are likely to circulate in your professional world. Worse, you may be humiliated on the witness stand, potentially reduced to weeping while being cross-examined by an aggressive attorney. Adding to that aggravation is the fact that the judicial process is incredibly slow. The journey through a negligence lawsuit is not unlike falling from a cliff in slow motion.

Litigation Stress

Aside from the humiliation and stress involved, being a defendant in a negligence lawsuit can adversely affect your quality of life for years. Cases are known to drag on for unbelievable periods of time, especially in court systems with congested dockets. Even if the case is settled before trial, or the claims against you are not proven in court or dismissed, the negligence claims asserted against you may negatively affect your career for as long as you practice. There is nothing positive to be gained from this experience. Even an ultimate decision in your favor cannot undo the significant damage and distress you will endure through this seemingly endless experience.

In any job interview, application for malpractice insurance, or hospital credentialing application, it will probably be necessary for you to report the details of any previous or ongoing claims of midwifery negligence. Win or lose, you may have to report your litigation history. You also might have to experience the painful process of repeatedly explaining it. In essence, this unfortunate experience never really goes away. Future hiring managers and recruiters may inquire about any malpractice actions you have been involved in and, in the context of this inquiry, may apply enhanced scrutiny when determining whether or not you are the best candidate for employment.

Witnessing and participating in negligence cases against CNMs is unsettling. These experiences, however, have motivated an effort to support clinical awareness and prevention strategies for avoiding midwifery malpractice.1 Best care initiatives include avoidance through conscientious, excellent care and adherence to the standards of care established by The American College of Nurse-Midwives (ACNM). These standards provide a robust care framework, supporting midwives in protecting the health and safety of women, babies, and families seeking this model of care. There is no “time off” when it comes to the delivery of maternal-child care. Expectations for excellence are appropriately high because the stakes are high.

The articles presented at this source have the potential to be informative and, hopefully, reassuring. I intend to allay your unfounded legal fears, assist you with managing the legitimate ones, and re-familiarize you with ACNM standards, core competencies, and associated practice documents. In particular, I hope to support you in consistently maintaining the highest levels of care as informed and committed clinical providers of maternity healthcare; not only in the alert, rested hours of day, but also through the dark, exhausting hours of night.

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Awareness of Legal Risk in Midwifery Practice

Diversified Midwifery Practice in the United States