Awareness of Legal Risk In Midwifery Practice

When any of us embark on a career, especially in the healthcare professions, we do not expect to spend time in a courtroom, someday, accused of negligence and forced to defend the care we have provided. 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 feel confident that a review of practice standards, and legal responsibilities in practice, can enhance quality of care and potentially prepare midwifery professionals for unexpected legal challenges.

Litigation awareness can be anxiety-provoking and something many midwives would prefer to ignore. Despite this tendency, developing a deeper understanding of medical-legal issues and mitigation of risk in practice may help with avoiding future involvement with the legal system.

Basic medical-legal knowledge can be useful. Understanding legal liability concepts, and the potential for legal risk in vulnerable settings, can provide you with knowledge and perspective to, consistently, make responsible choices on behalf of your patients. In every maternity care practice, the goal is to avoid the unthinkable; that your clinical decisions are implicated in injury, or worse, to a mother and her infant.

Defendants’ Advantage

No one aspires to be named in a malpractice case, but if you find yourself in this unfortunate situation, the news isn’t all bad. A favorable judicial reality exists for defendants involved in medical negligence lawsuits. In the event that you are sued for substandard 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 for malpractice.

In the aftermath of claims for negligence, injured parties (plaintiffs) prevail at trial only a fraction of the time (around 30% or less). Studies of juror bias, in civil cases, suggest that individuals may have ingrained points of view and prejudices that affect their understanding of the evidence (implicit bias). As an example, it may be possible that jurors drawn from a defendant’s own community might be, unwittingly, sympathetic to local malpractice defendants.

Jury Verdicts

There is an abundant body of research that suggests juries tend to favor physician defendants. Whether or not this extends to care providers that are not doctors is hard to ascertain, due to lack of information on this specific demographic at trial.

In civil cases, the burden of proof is on the injured plaintiff to prove her case by a preponderance of the evidence (as opposed to beyond a reasonable doubt, the standard in criminal litigation). Fifty-one percent is sufficient to prove negligence. Fifty percent is not enough, and 49% is considered to be a verdict for the defendant. Statistically speaking, a verdict can hinge on a 1% absolute difference for or against the defense. Despite published trends in jury verdicts, they can still be unpredictable. Even presiding judges, listening to the same evidence as the jury, have reached opposite conclusions regarding the verdict in almost 30% of civil cases.[1]

Juror Bias

Efforts are made during jury selection to dismiss individuals who may be biased, but it is an imperfect process. A commonly utilized defense argument presented to jurors, in medical malpractice litigation, is: “the unpredictability of medicine”. That’s it; simple, effective, and meaningless. But, juries respond positively to it. Similar world-worn plaintiffs’ arguments can lack an equal amount of clarity. It is discouraging to admit that verdicts can be a coin-toss.

Although potential juror bias can be advantageous for healthcare defendants, do not consider this to be overly reassuring or that you should underestimate your legal risks.[2]

Trial Stress

The experience of being sued, and eventually proceeding to trial, is overwhelming. Co-workers (and even co-defendants) may not be supportive and might avoid you during the process.[3] Gossip and assumptions about your care are likely to circulate in your professional world. If your case fails to settle and it proceeds to trial, you can anticipate the possibility of being pressured on the witness stand, and possibly breaking down, in front of strangers , while being cross-examined by aggressive counsel. In addition to this misery, the judicial process is impossibly slow. The journey through a negligence lawsuit might feel comparable to driving off a cliff in slow motion.

Aside from the stress involved during the litigation, being a defendant in a negligence lawsuit can adversely affect your quality of life for years. Cases are known to drag on for protracted periods of time, especially in court systems with congested dockets.

If the case is settled before trial, or the claims against you are not proven in court or dismissed, this is good news. However, the original negligence claims asserted against you will not just disappear. You might never enjoy any sense of vindication. Unsuccessful claims of negligence can negatively affect your career for as long as you practice. Despite a judicial decision in your favor, nothing can completely erase the damage and distress you will endure from this experience.

Litigation History

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 be required to report your litigation history. It is likely that you will 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 previous malpractice claims or litigation you have experienced and, in the context of this inquiry, apply enhanced scrutiny when deciding whether or not you are the best candidate for a position.

Best Care

Witnessing and participating in negligence cases against CNMs is unsettling. These experiences have, however, motivated this effort to promote clinical awareness and prevention strategies for avoiding midwifery malpractice.[4] 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). Standards of practice provide a sturdy care framework, encouraging midwives to protect the health and safety of the women, babies, and families seeking this model of care. There is no “time off” during the delivery of maternal-child care. Expectations for excellence are appropriately high because the stakes are high.

Articles presented from this source have the potential to be informative and, mostly, reassuring. My intention is 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/infant healthcare; not only in the alert, rested hours of day, but also through the dark, exhausting hours of night.

1 LinkedIn: Hreib, Kinan, MD, Ph.D, MBA. Do juries really favor physician defendants in medical malpractice?

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

3 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.

4 One of the major goals in providing this information is to assist CNMs with the unique challenges of hospital practice. The information provided may also be relevant to clinic, birth center, and home birth CNMs/CMs/CPMs, and practicing midwives from all backgrounds and setttings.

* For other designations of midwives who may find this information useful, I encourage you to adhere to the standards set forth by your specific certifying entities.

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