Retrospective evaluation of the characteristics of obstetric malpractice litigations acquired from expertise reports of a referral university hospital in Turkey

Introduction

Malpractice is defined as any act or omission by a physician during the treatment of a patient that deviates from the accepted norms of practice in the medical community and harms the patient⁽¹⁾. The concept of malpractice extends through ancient times (Hammurabi’s Code of Laws), and in recent years it has become a concern for every physician around the world⁽²⁾. The increasing risk of litigation and liability causes great anxiety and stress for physicians, which influences decision-making processes. Among physicians, obstetricians are evaluated as high-risk specialists in terms of liability. According to data from the USA, among all proficiencies, obstetrics takes the lead in terms of indemnity payouts⁽³⁾. In terms of paid-to-closed ratios of claims, obstetrics is also the leading proficiency⁽⁴⁾. It has been shown that all obstetricians will face a medico-legal claim by the age of 45 years old, which is the highest risk faced by any proficiency⁽⁵⁾. The critical issues are the interference of medical complications and malpractice by mistake or on purpose and the unethical approaches to patients and their lawyers⁽⁶⁾.

The medico-legal climate and fear of being sued causes physicians to practice in a more defensive manner^(7,8). In the case of obstetrics, the most common and worrying result of defensive approach is represented by the increasing caesarean section rates, resulting in an increased economic burden and caesarean-related complications^(9-11). These circumstances are also causing practitioners to avoid high-risk patients or relatively risky interventions like vaginal birth after caesarean section⁽¹²⁾.

Medico-legal claims are obligating physicians to have “insurance contracts” in many countries, including Turkey. Thus, insurance policies and medico-legal claims are regulated by laws in several countries. In Turkey, the law regarding malpractice claims and insurance poli­cies was legalized in 2010, being entitled the Obligatory Insurance for Medical Malpractice⁽¹³⁾. This law obliged every physician to have insurance against medical malpractice litigations and obliged the institutions to contribute to insurance payments. On the other hand, this situation increased the rate of malicious litigation and malevolent approaches.

In Turkey, medico-legal claims and malpractice litigation are becoming increasingly popular, probably due to the changing social and medico-legal climate during recent years. Thus, physicians are more defensive and more cautious in their daily practices.

In this study, we aimed to evaluate the characteristics of obstetric medico-legal litigation based on expertise reports written at our institution between 2007 and 2017.

Materials and method

This is a retrospective study, evaluating 80 expertise reports written for obstetric medico-legal litigations, between 2007 and 2017. The data were acquired from expertise reports written in the Division of Perinatology at the Hacettepe University in response to the official requests of courts or institutions. The reports were written after careful evaluation of patient files, reported claims of patients and medical staff, forensic medicine reports (in case of existence at files) sent by court, and literature about the case. All of the expertise reports were sent to the court after three physicians in the field of conflict of interest reached consensus (at least one obstetrician for each case).

The data acquired from the expertise reports included the year of incidence, duration between incidence and litigation, court type (criminal court, law court, or university/institutional investigation prior to legal processes), characteristics of defendant and plaintiff, type of medical institution, reason for litigation, existence of fetal and/or maternal morbidity and/or mortality, route of delivery, emergency state of surgical interventions, and existence of any sequelae at the time of expertise. Expertise opinion and final court decisions have not been included in the data due to ethical and legal issues.

Descriptive statistics were performed using SPSS v23.0 (IBM Corp. Released 2015. IBM SPSS Statistics for Windows, Version 23.0 Armonk, NY: IBM Corp.).

This retrospective study was approved by the Hacet­tepe University Ethics Committee (no.: GO 18/91 – 12).

Results

This study consists of 80 medico-legal cases from dif­ferent regions of Turkey. In this study, we have shown that medico-legal litigations concerning obstetrics have been increasing in recent years (Table 1). We have found that 26.3% and 73.7% of cases occurred between 2007-2012 and 2013-2017, respectively. We have also shown that only seven expertise reports were written before 2010, which is the year that the Obligatory Insurance for Medical Malpractice law was ratified in Turkey. The average duration between the incidence of the medico-legal case and the litigation was 48 months (range: 3-171 months).
 

Table 2 summarizes the characteristics of the litigation. Expertise reports have been demanded from three types of entities: 75% from law courts, 15% from criminal courts, and 10% from universities/institutions. The primary plaintiff was the patient herself in a majority of cases (n=61).
 

More than half of the cases (53.7%; n=43) were from private hospitals, which were followed by state hospitals, universities and training state hospitals, with 20 (25%), 13 (16.3%) and four cases (5%), respectively. The primary defendant was the physician in 81.3% of the cases. No plaintiff or defendant information was addressed in eight cases, which were all expertise reports requested from universities or institutions prior to litigation.

Intrapartum and puerperal period related events were the most common subjects of claims (77.5%; n=62). Among the peripartum claims, shoulder dystocia, fetal asphyxia and caesarean section related complications were the most common claims, with 14 (17.5%), 12 (15%) and 10 cases (12.5%), respectively. Postpartum bleeding was also the subject of eight litigations (10%), which ended up with caesarean hysterectomies in three cases. Diagnosis-related claims (absence of test, misdiagnosis, or undiagnosis) were also the subject of 18 cases (22.5%), 12 of which were related to prenatal diagnosis.

Medico-legal cases were also evaluated according to the existence of maternal and/or fetal morbidity and/or mortality (Table 3). The most common problem was fetal morbidity, which was involved in 38 cases (47.5%). Maternal and fetal mortality occurred in 10 (12.5%) and 22 cases (27.5%), respectively. It has also been shown that two cases had neither maternal or fetal morbidity nor mortality (without objective medical reason).
 

The route of delivery was vaginal, caesarean section, or operative vaginal in 33, 29 and seven cases, respectively. The route of delivery was not reported in 11 cases in which the claim was not related to the route of delivery (other than delivery complications). Out of 29 caesarean section cases, 26 were performed in emergency conditions, and only three of them were elective operations. The average birthweight in the 14 cases involving shoulder dystocia litigations was 4191±492 grams.

The existence of any sequelae due to an investigated case was also evaluated according to the data in patient files. Cases had “various sequelae”, “maternal and/or fetal loss”, or “no sequelae” in 41 (51.3%), 27 (33.7%), and 12 cases (15%), respectively.

In addition, only two patients stated that there was a breach of the duty to inform, despite the existence of informed consent in every file.

Discussion

Medico-legal litigation is a concern for every physi­cian, and it causes them to practice in a more defensive manner. It has been reported that obstetricians have a higher risk of medico-legal claims when compared to the other medical branches. It has also been shown that obstetrics and gynecology are the leading professions in Turkey in terms of medico-legal litigation⁽¹⁴⁾.

In Turkey, the medico-legal process begins with the patient’s claim, and the primary investigation is carried out at the institution/university. A summary of the proceedings is prepared by the principal investigator. At this stage, the investigator may demand an “expertise report” from experts at other institutions/universities by an official request. At the second stage, the final decision of the principal investigator is reevaluated by the three-member supreme board (having prosecutorial authorization) of the university for public prosecution. At the third stage, a suit or a non-suit decision of the supreme board is sent to the Fifth Circuit of Council of State (consisting of five judges) for further evaluation and decision for the litigation. In the case of a suit decision of the Council of State, the file is directed to the Criminal or Civil Court of General Jurisdiction for official litigation (in the case of non-suit decision, the plaintiff has right to go directly to the Council of State as a high court). The litigation process consists of conciliation, main litigation, and the decision steps. Meantime, the plaintiff is also free to demand “action for damages” at another civil court (also, having conciliation option). During the course of both law suits, judges are free to seek expertise reports from the Forensic Medicine Institution of the Ministry of Justice, and/or from universities. Finally, both sides have the right to contest the court decision and admit to the Council of State for high appeal to court decision, or to the High Court of Appeals.

From our data, the average duration between the incidence of the medico-legal case and the litigation was 48 months (range: 3-171 months). In Turkey, individuals are free to litigate without any restriction. However, the statute of limitations exists under certain conditions. The statute of limitations for compensation is regulated by the Code of Obligations, and the criminal jurisdiction is regulated by the Criminal Code.

Our data revealed an increasing frequency of litigations, which is similar to that experienced by many other countries⁽¹⁵⁾. Recently approved medico-legal codes and new arrangements may also be the reason for the increased rate of litigation⁽¹⁶⁾. In our study, we also demonstrated that litigation increased after the acceptance of the “Obligatory Insurance for Medical Malpractice” law in 2010. This trend has been evaluated as a problem worldwide, and countries are searching for new solutions, including compensatory programs or new legal arrangements, to minimize litigation. Furthermore, conciliation offices are becoming increasingly common and might be the reason for the changing trends in medico-legal litigation⁽¹⁷⁾.

In this study, 75% of the cases (n=60) were carried out at law courts, because most of them were indemnity cases. Due to the unique structure of each country’s medico-legal code, it is not possible to compare these data. In our study, the patient herself was the main plaintiff in the majority of the cases, most probably because the presence of plaintiff is obligatory in criminal cases in Turkey. The primary defendant was the physician, as well as nurses and midwifes in the majority of cases. The infrastructure of the hospitals is also very important in medico-legal litigation, and some state hospitals are at risk due to the insufficiency of health services. Comparison of this data between countries is challenging due to the differences in health system infrastructure. For example, in Germany most of the lawsuits were against hospitals instead of physicians⁽¹⁸⁾.

In our series, private hospitals have been shown to be the most frequent institutions involved in medico-legal cases. Frequent claims involving private hospitals may be explained by the financial relationship between the patient and the institution and the patient’s status as a consumer⁽¹⁹⁾. On the other hand, referral university hospitals are under pressure because of the clinical characteristics of the patients (complicated pregnancies).

Medico-legal claims are mostly related to the infant’s future life expectancy and possible fee for future treatments and handicaps⁽²⁰⁾. In our study, intra-/peripartum events like shoulder dystocia, fetal asphyxia, or misdiagnosis (absence of test, misdiagnosis and undiagnosis) were the most common subjects of litigation. Unfortunately, intrapartum fetal hypoxia related problems and shoulder dystocia are complications that every physician may face during the course of their routine practice. On the other hand, the lack of prenatal diagnosis is a controversial issue. Most of the time, the perceptions of plaintiffs are chaotic because they are unable to differentiate between medical complications and medical ignorance or malpractice. Problems related to the statistical measures of prenatal screening/diagnostic tests and ultrasonographic misdiagnosis are also the subjects of litigation, although these are the unfortunate medical fallacies that every physician may come across during their daily practices, and they should not be the concern of litigation.

In this study, the route of delivery was vaginal, caesarean section, or operative vaginal in 33, 29 and seven cases, respectively. Furthermore, we have demonstrated that 26 out of 29 caesarean sections (89.6%) were urgent interventions. According to our data, emergent caesarean sections and operative vaginal deliveries may be evaluated as high-risk procedures in terms of medico-legal liability. Intrapartum and postpartum bleedings are very critical medico-legal issues. It is not always possible to predict these types of complications during the course of antenatal care programs. On the other hand, management of intra- and post-partum bleedings necessitates appropriate hospital infrastructures. Unfortunately, lifesaving caesarean hysterectomies may sometimes be the subject of litigations due to the inaccurate perception of the plaintiffs. In this study, we have shown that three caesarean hysterectomies (3.75%) were a subject of litigation. The infrastructure of the institution may not cover the expectations of the patients or the families.

We have shown that the legal problems related to shoulder dystocia litigation are very similar to those found in previously published studies. In this study, the mean birth weight of infants in shoulder dystocia cases was found to be 4191±492 grams, and the findings were consistent with the ACOG guideline recommendations for vaginal birth⁽²¹⁾. However, the plaintiffs’ and lawyers’ understanding of birthweight is not always in accordance with the medical/scientific reality, and babies over 4000 grams were accepted to be under risk for dystocia. Previous studies also showed that brachial nerve surgery, clavicular fracture, and symptom persistence after one year have also been revealed as risk factors for litigation regardless of fetal weight⁽²²⁾.

The other critical issue in medico-legal claims is the insufficient interaction between obstetric wards and intensive neonatology care units, as well as improper transportation procedures. Perceptional disharmony between physicians and patients seems to be an important factor for these types of unfortunate litigation. Prejudicial and malicious claims are, also, critical in medico-legal events, and it is critical that judges designate these unfortunate approaches for the maintenance of justice.

In our study, the breach of duty to inform was not a frequent claim, although it is much more common in other countries⁽²³⁾. This may be explained by the education level and cultural backgrounds of patients all over the country, and the existence of a primary obstetric claim. It has been reported that good physician-patient communication reduces the rate of medico-legal issues⁽²⁴⁾. In this study, the majority of the cases were related to perinatal morbidity and mortality rather than maternal complications. This finding is also in accordance with previously published studies⁽²⁵⁾.

In our series, in two cases, without any maternal and fetal morbidity, we could not detect reasonable claims, but instead we found unwarranted litigation. In 12 cases, there were no signs and symptoms related to claim during the time of the preparation of the expertise report. These situations may also motivate physicians to act in a more defensive manner.

We did not present data about expert opinions or final court decisions because of ethical and legal issues.

In conclusion, we have evaluated the characteristics of obstetric medico-legal litigation using expertise reports written at our institution between 2007 and 2017. Medico-legal claims are shown to be increasing in Turkey, like in many other countries. Problems involving prenatal screening/diagnosis, intrapartum processes, urgent caesarean sections, and operative vaginal deliveries were found to be highly liable situations. Further legal regulation is needed to provide a more comfortable medico-legal climate for physicians.

Compliance with Ethical Standarts. This retrospective study was approved by the Hacettepe University Ethics Committee (no: GO 18/91 – 12). This study was not funded by any company or person.  

Corresponding author: Mehmet Sinan Beksac, e-mail: beksacsinan@gmail.com

Conflict of interests: none declared.

Financial support: none declared.

This work is permanently accessible online free of charge and published under the CC-BY.