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Attorneys and Claims Managers

Attorneys and claims managers have information, advice, and observations of trends to share with us:

  • It is common that over 50 percent of a hospital's risk management budget is spent in OB; over 50 percent of insurance company losses are obstetrical cases.
  • Documentation must be consistent between RNs, CNMs, and MDs, and prove absolutely "no abandonment." Record TIME as well as the date in all notes because the timing of the injury becomes crucial in many cases.
  • Do not editorialize in the medical record. What belongs in a chart are your FINDINGS.
  • Plaintiffs' counsel have become specialized (e.g. obstetric cases) and sub-specialized (e.g. shoulder dystocia cases), and their cases are much better prepared.
  • Plaintiffs' counsel have vastly increased resources for case preparation and recruitment of legitimate experts with good credentials.
  • The use of professionally prepared multimedia presentations of technical and scientific information, as well as "A Day in the Life" stories abou the plaintiff, is increasing.
  • Successful plaintiffs' counsel carefully screen cases and focus on those with major injury and deviations from standards of care that are almost irrefutable.
  • Non-physicians (RNs, CNMs, genetic counselors) who were rarely named in lawsuits in the past are increasingly named as defendants. They can appear very distraught, fearful, less confident, and less experienced than MDs in the courtroom.
  • There are many more and more pre-trial settlements; juries are unpredictable; it is extremely difficult to defend a case when there were deviations from the standard of care or there is inadequate documentation of adequate care; and the cost of defending cases has steadily increased.
  • Awards have become proportional to the magnitude of the injury, not to the presence or absence of negligence.
  • Settlements/verdicts are in the multimillion-dollar range.
  • Some defense counsel perceive that there is a reversal of the burden of proof in medical negligence cases. Once the jury notes a major injury, the defendants are often pressed to disprove negligence to the jury's satisfaction rather than the reverse.
  • In some settings, healthcare professionals no longer have the standing in the jury's eyes that they once did.
  • It is clear that many doctors, nurses, midwives and counselors do not understand the concept of 'the standard of care' and are unfamiliar with the guidelines, technical bulletins, peer review articles, textbooks, and other things that may be used to establish a standard of care in a case.
  • The internet has eliminated the ability to defend a local or regional standard of care. Everyone must demonstrate that they know the national standard of care for a given situation and explain how they exerted due diligence to meet it, given the resources available to them.
  • There are an increasing number of cases regarding failure to diagnose cancer, especially breast cancer.

For more information on the Obstetric Safety Initiative, or to offer suggestions for this site, contact us.