Awareness of Legal Risk in Midwifery Practice

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 and mitigation of risk in practice can only help with avoiding future involvement with the legal system. Basic medical-legal knowledge can be useful. Understanding select legal liability concepts, especially in the context of problematic workplace issues, may provide important insight and perspective. Knowledge may assist you to make informed choices and avoid the unthinkable; that your care is implicated in death or permanent harm to a mother or her infant.

There is a favorable legal reality which exists for defendants involved in medical negligence lawsuits. In the event that 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.

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.

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 has not been my idea of a good time. These experiences have, however, instilled motivation to promote clinical awareness and prevention strategies to avoid malpractice.*** Best care strategies include avoidance through conscientious, meticulous care and devoted adherence to the standards of care set forth by The American College of Nurse-Midwives (ACNM). These standards are your foundation and protection, providing a sturdy care framework which supports the health and safety of the women, babies, and families relying on you. 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 outlined, here, have the potential to be helpful in your practice. They are intended to allay some of your unfounded legal fears, assist you to manage the legitimate ones, and re-familiarize you with ACNM standards and practice documents. In particular, I hope to encourage you to maintain 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 during the dark, exhausting hours of night.

*The Impact of Juror Biases. Jury Analyst. March 18, 2021

**Page, Katie CNM et.al. Midwives and Liability: Results of the 2018 National Midwives and Liability Survey. Journal of Midwifery and Women’s Health, Volume 67, Issue 2/p.226-234.

***My principle purpose in providing this information is to assist CNMs and CMs with challenges in hospital practice, but the information provided should be considered available to CPMs, and practicing midwives from all backgrounds.

http://www.midwivesontrial.com

Awareness of Legal Risk in Midwifery Practice

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