Obstetricians may avoid births due to lawsuit threats

By Frank Donnelly
http://www.nola.com

NEW YORK — Ten years from now, many babies could be delivered by doctors who are total strangers to their mothers.

Medical malpractice insurance for obstetricians and gynecologists could become so expensive that only hospitals — and the doctors under their insurance umbrellas — could afford coverage for birthings.

For expectant moms it means their gynecologists, after shepherding them through nine months, would hand them over to a “laborist” — a hospital staff doctor specializing in delivering babies.

“I think it’s going to compromise the care,” said Dr. David Herzog, who is an attending physician and also teaches at Richmond University Medical Center on Staten Island. A baby’s birth will become “a sterile procedure instead of a beautiful experience; it’s inevitable if the current system continues as is.”

Herzog, who says he has delivered thousands of babies since 1990, survived a scare last month. A jury found him not liable in a multimillion-dollar medical malpractice lawsuit accusing him of causing a premature baby to be born with cerebral palsy eight years ago.

Herzog, often cited as one of Staten Island’s top ob-gyns, has two other pending cases there and at least one in Brooklyn, state court records show. Years ago, he settled a medical malpractice case. He has never been disciplined by the state Office of Professional Medical Conduct.

Herzog says he is confident he will win the pending cases, but they already have taken a toll.

Ob-gyns say sky-high medical malpractice premiums — typically near $200,000 a year here — and the possibility of those rates doubling or tripling if they lose a major malpractice case, have caused many colleagues to rethink their practice or leave the field.

The annual medical malpractice premium for Herzog’s practice, which includes three other physicians, is $700,000, he said.

“You could have 10 lawsuits against you and not one could make it to trial, but by virtue of the volume, you could be dropped by your insurance carrier . . . and you can’t practice medicine,” said Herzog. “It’s always on your mind.”

Even cases that don’t go to trial could cost tens of thousands of dollars, if not hundreds of thousands of dollars, to defend, lawyers say.

Obstetricians and neurosurgeons are among the most frequently sued doctors in the country because of their high-risk practices. Injuries, particularly of the brain, are sometimes lethal or can disable a person for life. Damage awards can run to the millions of dollars.

According to the Web site of the American College of Obstetricians and Gynecologists (ACOG), ob-gyn practitioners, on average, have nearly three claims filed against them during their careers.

“All too often, doctors are held liable for less-than-perfect outcomes,” said Dr. Ralph W. Hale, ACOG’s executive vice president, in a statement on the group’s Web site.

Yet some of those injuries — cerebral palsy, brain damage or other afflictions — can be caused by circumstances beyond the doctor’s control, such as congenital or genetic abnormalities, or intrauterine strokes.

Critics say doctors have been singing the same one-note tune for years.

Citing a 2006 study, a New York-based consumer group contends that less than 10 percent of an estimated 1 million people injured annually by medical errors in various disciplines file malpractice lawsuits.

That means most people hurt by doctors’ or hospitals’ errors aren’t being compensated, according to that group, the Center for Justice and Democracy.

“I’ve never met a doctor who said that any case against them wasn’t frivolous,” said Joanne Doroshow, the group’s executive director.

Instead of griping about medical malpractice suits or proposing that such cases be decided by a potentially biased medical panel, doctors and states need to do a better job of getting rid of bad physicians, said Doroshow.

According to a 2003 study by Public Citizen, a national nonprofit consumer watchdog, 7 percent of New York State’s 80,000 doctors account for 68 percent of medical malpractice payouts.

Herzog said patients injured by doctors have every right to sue. But, he said, it’s troubling to know his professional fate could be determined by a jury of laymen who likely have limited medical knowledge.

“Your whole life is in the hands of six jurors who, although they’re well-intentioned and giving great effort to the case, really aren’t qualified to decipher the facts and make a decision,” he said. “If you have a case that has complicated medical facts, these decisions should be made by a jury of your peers.”

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