Is Collaborative Practice a Malpractice Risk? Myth Versus Reality

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An administrator of a rural community health center recently called the American College of Nurse-Midwives (ACNM) with the following situation: For many years, a nurse-midwife had been providing prenatal care and referring women to the closest hospital for birth. A physician group provides consultation as needed and attends the births. Outcomes are good; patients, providers, and administrators are all content with the situation. The physician called this week to say that he has been told by his insurance company that he could no longer provide consulting services to the nurse-midwife. Apparently, the insurance company views collaboration with midwives as a potential risk for the physician. What will happen if the midwife stops providing prenatal care? The community health center cannot afford to hire a physician, and the women in the community are likely to lose access to prenatal care. They can, however, continue to be attended by the same physician during labor - without prenatal care. What is more likely to increase liability for the physician: providing collaborative care with a nurse-midwife, or attending births of women who have had no prenatal care?

Is this action on the part of the insurance company warranted? Does collaboration with a certified nurse-midwife (CNM) or certified midwife (CM) lead to increased liability for physicians? The 2003 American College of Obstetricians and Gynecologists (ACOG) Survey of Professional Liability found that nurse-midwives were codefendants in 2.6% of claims that were reported as opened and/or closed between 1999–2003. In 1992, nurse-mid-wives were codefendants in 2.4% of the claims reported as opened and/or closed.1 However, between 1992 and 2003, the number of survey respondents who employ nurse-midwives increased from 7.7% to 19.4%. Interestingly, the number of respondents who had insurance carrier surcharges for employing a nurse-midwife dropped from 57% in 1992 to 43.3% in 2003.1

Thus, it appears that the percentage of malpractice claims involving nurse-midwife/physician collaboration has remained stable, the number of nurse-midwife/physician collaborative practice arrangements has increased, and the percentage of insurance carriers charging surcharges for CNM/CM collaboration has decreased. Why then is the perception that collaboration is a medical-legal risk so pervasive?

Surveys of malpractice claims consistently identify fetal heart rate monitoring, neurologically impaired children, stillbirth or neonatal death, shoulder dystocia, oxytocic agents, failure to perform a cesarean section in 30 minutes, and uterine rupture as the factors most frequently present in cases that are litigated.1,2 These issues all occur in clinical scenarios that can shift from normal to potentially hazardous in a very short time. Miscommunication is a factor in many malpractice suits.3

Minimizing risk via avoidance of perceived high risk situations, a practice called “negative defensive medicine,” is a strategy used frequently by obstetrician-gynecologists who have a lack of confidence in their liability insurance and a perceived high burden of insurance premium cost.4 Both the 2003 ACOG Professional Liability Survey1 and a recent survey of high-risk specialist physicians4 found that approximately half of the obstetrician-gynecologists who responded have decreased the number of high risk deliveries or limited the number of births attended as a result of unaffordable or unavailable malpractice insurance (51.3% in the ACOG survey1 and 46% in the survey by Studdert DM et al.4).

However, minimizing risk by avoiding collaboration with nurse-midwives is not evidence-based. In fact, obstetricians responding the 2003 ACOG Professional Liability Survey who had malpractice claims that included codefendants were more likely to have professionals other than CNMs/CMs named as those codefendants. Associate obstetricians were named in 27%, residents in 16.3%, nurses in 7.1%, anesthesiologists in 5.2%, pediatrician/neonatologists in 3.5%, and family physicians in 3.3%.1 If avoiding collaboration is an effective risk reduction strategy, obstetricians should stop working with other obstetricians and nurses. Or perhaps they should pay higher insurance surcharges for working with other obstetricians or nurses?

Furthermore, there is no comprehensive database of all the obstetric malpractice claims filed in the United States. We can look at the National Practitioner Data Bank (NPDB), reports from individual insurers, and published analyses of closed claims cases, but none of these sources can provide accurate numeric data on how often collaboration between CNMs/CMs and physicians is a factor in malpractice allegation. In addition, two practices used by defendant law firms mask the true number of incidents that include specific practitioners. First, the “shotgun approach” of naming every provider present results in allegations against every provider present whether or not that provider was directly involved in the management of the patient involved. Second, the “deep pocket” approach of suing a hospital or managed care organization results in underreporting because the institution does not have to report the names of individual employees named in a suit.

In 1999, the Institutes of Medicine released To Err is Human: Building a Safer Health System,5 a landmark report that focused attention on medical error-related events and sparked a national conversation about consumer protection and quality in the health care industry. The effect of that report has been far-reaching: states and the federal government have expanded initiatives to increase reporting of adverse events and develop methods for holding health care entities accountable; the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) has increased emphasis on root cause analysis of “reviewable sentinel events”;6 payors and individual consumers are seeking out and acting on information regarding the performance of hospitals and individual providers. We are an industry undergoing a degree of scrutiny as never before.

We can respond to this situation in a variety of ways. Teams outperform individuals in all health care settings. The provision of obstetric care requires a team, and we must focus on ways to protect the team. Fortunately, good communication is as easy as miscommunication and infinitely more effective. Methods of communicating clearly are simple to teach and easy to learn. Interdisciplinary agreements for use of terms to describe fetal heart rate patterns is a good example.7 Indeed, many in the risk management industry have focused attention on the absence of communications training for healthcare professionals and have worked to remedy that.8 We can learn to build better interdisciplinary teams and make consultation, collaboration and referral of care smooth and effective.

Once formed, teams can practice responses to emergent scenarios. The shoulder dystocia curriculum at Baystate Medical Center in Massachusetts is an excellent example. A team of physicians, nurse-midwives, nurses, and resident physicians developed the skills set and standard sequencing of maneuvers that are to be used when a shoulder dystocia occurs. This curriculum is presented as a 2 hour interdisciplinary training that emphasizes communication skills and knowledge of team member's roles. It is institution specific, it involves everyone who cares for women in labor, and each member of this health care team are invested in its use (personal communication, Susan DeJoy, CNM, MSN, October 6, 2005). Really pretty simple.

Negative defensive medicine, can also be called “the ostrich approach,” and it should not be confused with the provision of safe care. A “no more consulting with the CNMs/CMs” policy is founded in fear rather than fact. The health care industry must not give in to the unfounded advice to “circle the wagons,” to avoid collaboration and to fragment care. “Don't consult with CNMs/CMs,” may seem like a quick solution to minimizing risk for an individual provider, but it is a strategy that has no basis. In fact, it is not really “safer” for the client, nor is it better for the system.

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