the politics of malpractice

a friend o'mine was concerned about the fact that homebirth midwives do not have malpractice liability insurance. we talked about the financial barriers--most insurance companies refuse to cover midwives or at astronomically unaffordable rates. and i later wrote this to her:

i read this article about malpractice in southwest magazine (i think. pregnancy brain.) a couple of years ago about malpractice and accountability/ethics. the point of having malpractice insurance is in case you get sued. the ethical part of the question comes in when you look at why or when people sue. so the article was saying that its not just having an undesired outcome that makes people sue, but that the majority of malpractice lawsuits occur when they have an undesired outcome and they are dis-informed or ignored by their care provider afterwards when the patient/family try to understand why/what happened and get closure (usually because the care provider is afraid of getting sued, they don't trust their patient, they clam up usually and this is a fairly universal hospital policy/protocol too). the lack of accountability and violation of their trust rightly infuriates people and they sue to get access to the information not primarily for money nor to "reverse" the outcome. they see the monetary damages as a way to teach the hospital/doctor that it should give the information/closure to patients in the first place. and so now, a few hospitals are now trying a new mediating approach where care providers talk to the families after an undesired outcome, give them what information they have, and admit any mistakes and apologize if necessary. the result--the family gets closure & does not pursue a malpractice lawsuit.

from my perspective, insurance in general is designed to financially protect your assets (whether life, car or home); malpractice insurance is really a way for the medical establishment to avoid accountability and to protect their financial assets. its sort of a moot point for most midwives because of the mutual trust building, the ethics of empowering the client/family particularly with information, and accountability to the client. if midwives had to get malpractice insurance, they would go out of business b/c of the expense & barriers. and if they got sued (regardless of insurance or no), they would go out of business. and that's also one of the reasons why many hospitals are reluctant to grant midwives hospital privileges b/c the hospital would be liable in the event of a lawsuit. what makes it moot is that because of the empowerment, trust and relationship, midwives aren't as likely to be in a situation where a family feels like its only recourse to getting closure about an undesired outcome is to sue. really overwhelmingly midwives are sued/persecuted with criminal charges by doctors and hospitals more than you see midwives sued by clients. so that's the larger context. and from my experience, when my niece died at birth last year, the nurse midwife (similar to CNMs in the East Bay, had hospital privileges) came and talked to my sister soon after. and my sister got the closure she needed around how Anabelle died. it didn't change the outcome or her grief, but she understood why/how it happened even as she disagreed with the standard medical procedure to resuscitate.

malpractice insurance doesn't prevent undesired outcomes. that's a part of the package when we choose to have a homebirth. we are informed about risk, outcomes and prevention and empowered to make choices. and thats part of the very small risk we accept to have a normal and safe birth.

malpractice insurance doesnt protect the patient; it protects the doctor.