A comparison of medical litigation filed against obstetrics and gynecology, internal medicine, and surgery departments

An increase in litigation against obstetrics and gynecology departments, as compared with other medical departments, is becoming an issue in medicine [1–4]. In Japan, both maternal and perinatal mortality rates remain low [5] and healthcare safety in obstetrics and gynecology departments is considered to be excellent from a [4] global perspective. Despite this, the percentage of medical litigation cases filed against obstetrics and gynecology departments, compared with other departments, is increasing in Japan (http://www.courts.go.jp/saikosai/iinkai/izikankei/index.html). Moreover, the shortage of obstetricians and gynecologists in Japan is becoming a serious problem, along with an increase in the number of cases in which physicians have to pay substantial compensation following a medical litigation decision. This has led to the establishment of the Japan Obstetric Compensation System for Cerebral Palsy in 2011 (http://www.sanka-hp.jcqhc.or.jp/). The purpose of this system was to “provide an early resolution to disputes and compensation for the financial burden of children with severe cerebral palsy that developed in connection with delivery and their families, and to improve the quality of obstetric care.” This highlights how medical litigation in the field of obstetrics and gynecology is a growing problem in Japan and overseas.

Inappropriate explanations by physicians can lead to medical disputes [6–11]. Factors affecting physician–patient communication differ, according to the medical department, and it has been reported that poor patient–physician communication was predictive of medical claims among internists, but not among surgeons [7]. However, there has been little study of patient-surgeon communication, as compared to that involving primary physicians. Several reports contain analyses of medical litigation filed against other medical departments, including those involving family physicians [12], surgeons [13, 14], anesthesiologists [15], and radiology departments [16]. However, no studies have compared these medical departments.

To date, we have focused on physician–patient communication as the cause of medical litigation and have elucidated physician liability and its cause by analyzing medical lawsuits and quantitatively assessing physician–patient communication [17–23]. These studies have revealed that when a breach of the duty to explain is acknowledged, such cases typically involve a single physician, a clinic, and a lack of prior explanation; thus, it is clear that physicians must acknowledge that a breach of the duty to explain can easily occur in such situations.

An insufficient explanation by a physician is a breach of legal duty, even if the physician exercises sound judgment and performs a procedure perfectly. But it must be asked: What is to be explained? Earlier, the test for this was how something would have been explained by a reasonable physician in the same situation as the physician being sued [24]. However, recently, the concept of a ‘model patient’ (who is of average intelligence and not poorly educated) has gained favor. Thus, even if the physician thinks that a particular patient will not understand the explanation, the physician must carefully explain anyway [24]. Also, the field of medical ethics, and its relationship with the law, are in play. The law does not contain all of the relevant rules; the medical ethics associated with applications of medical advances, and the association between medical ethics and law, are not wholly clear. Thus, the legal extent of the duty to explain remains uncertain.

In obstetrics and gynecology, a strong relationship between medical litigation and physician’s actions has been reported [8, 25–27]. We attempted to elucidate the typical factors related to physician’s liability by comparing medical litigation regarding disputes of a breach of the duty to explain in obstetrics and gynecology with those in internal medicine and surgery. We believe that by identifying points for improvement in the explanations of obstetricians, we can provide information useful for preventing medical litigation.

Physician, patient, and judicial factors reported in precedents are shown in Table 1. For patient factors, we compared the degree of injury sustained by patients and found that the proportion of deaths was significantly lower for obstetrics and gynecology departments compared with internal medicine and surgical departments (p = 0.020). In terms of physician factors, the proportion of cases where the standard of care was not given at the time of treatment was significantly higher for obstetrics and gynecology departments, at 35.5 % (p <0.001). On comparing judicial factors, we found that the proportion of cases involving decisions up to 1996 was significantly higher for obstetrics and gynecology departments (p = 0.034).

We next investigated judicial factors and found that the proportion of recent cases involving obstetrics and gynecology and internal medicine departments where a breach of the duty to explain was acknowledged was significantly high (p = 0.001, p <0.001, respectively); however, no significant difference was seen for surgical departments. In terms of the presence or absence of a medical expert witness, the proportion of cases involving obstetrics and gynecology departments where a breach of the duty to explain was acknowledged and a medical expert witness was called was significantly high (p = 0.005); however, no connection was seen for internal medicine or surgical departments. The proportion of cases where a breach of the duty to explain was acknowledged and the total number of disputed points was ≤ 3 was significantly high among all departments (p = 0.034, p = 0.002, p = 0.009, respectively).

In the present study, we focused on obstetrics and gynecology departments, for which medical litigation and substantial compensatory payouts are becoming particularly problematic, and we hypothesized that aspects of the physician’s duty to explain would differ by medical department. Several reports have emphasized the importance of communication in obstetrics and gynecology departments, [27, 28] as well as the problems associated with the continued availability of obstetric care in rural areas, caused by medical litigation [29]. We sought to define factors associated with the physician’s duty to explain by comparing obstetrics and gynecology departments with internal medicine and surgical departments. We made several interesting findings.

Firstly, we found a large number of cases in which a mistake by a physician in a medical procedure was recognized among cases involving obstetrics and gynecology departments where a breach of the duty to explain was acknowledged. While no significant differences in the proportion of cases involving mistakes in medical procedures on the part of the physician were seen among medical departments, cases where both a breach of the duty to explain and a mistake by a physician in a medical procedure were recognized were significantly more common among obstetrics and gynecology departments than other departments. We obtained different results for internal medicine departments and surgical departments; in cases involving internal medicine departments, the physician was often considered responsible when there was a breach of the duty to explain alone, whereas in cases involving surgical departments, the physician was often considered responsible when there was a mistake in a medical procedure alone. One reason for both breaches of the duty to explain and mistakes in medical procedures being recognized in cases involving obstetrics and gynecology departments may be that the patient refuses to accept the physician’s error, as stated previously. Moreover, the degree of accountability of obstetricians ranked somewhere between that of physicians working in internal medicine departments and those working in surgical departments. This may be due to interdepartmental differences in physician–patient communication, and while communication may be the cause of litigation against internal medicine departments, this may not be the case for surgical departments [7]. In other words, routine physician-patient communication differs between primary-care physicians who have and have not been required to defend prior malpractice claims. Such differences were not evident in surgeons who had been required to defend prior claims [7]. Physicians can improve communication by conversing longer with the patient, facilitating such conversation, and by being warm and friendly. Formal medical education is required to facilitate this [7]. Patients may consider surgeons to be technical experts, and thus accept a businesslike manner, but physicians are different [7]. In particular, an obstetrician is considered to be intermediate between a surgeon and a physician, and appropriate patient communication must be practiced.

Next, the number of patient deaths was significantly higher in obstetrics and gynecology departments that had conceded that a breach of the duty to explain had occurred. This is a recurring theme in medical litigation involving such departments. The extent of the injury sustained was irrelevant [6]. We also found no association between the extent of injury and the presence or absence of a breach of the duty to explain, although the numbers of negligent deaths were significantly higher in internal medicine and surgical departments than obstetrics and gynecology departments. Often, patients filing claims against obstetrics and gynecology departments consider that the serious injury complained of would not have occurred had they been fully informed about the possibility of such an outcome. Cases involving death include instances of postnatal anoxic encephalopathy, death from bacterial shock just after delivery, death from blood loss, death caused by ovarian hyperstimulation syndrome after infertility treatment, and death caused by uterine rupture after delivery. In most cases, the deaths were unexpected. However, it is very difficult to define the extent of accountability. Risk communication is problematic; if this is overdone the patient will become fearful and decline medical care that s/he urgently needs. Occupational ethics and the law related to physician behavior are in play. The topic requires further attention.

In addition, whether or not the care provided at the time of treatment was standard affected whether a breach of the duty to explain occurred in obstetrics and gynecology departments. This is likely due to retinopathy of prematurity cases in Japan from 40 years ago. A large number of medical litigation cases argued that physicians should have been aware of the fact that treating premature infants with high oxygen concentrations caused retinopathy of prematurity; thus, the medical standards at the time of treatment were disputed. In other words, a breach of the duty to explain was not acknowledged in the majority of lawsuits where a decision was made based on the year in which the case occurred, even if the decision was that the standard of care was provided. This is because physicians previously found it difficult to obtain information on medical standards. However, as this information became more widespread and we entered an era in which it was a requirement to be aware of medical standards, breaches of accountability were acknowledged. As a result, the lessons learned in obstetrics and gynecology departments may be applicable to other departments in the future. Physicians must therefore remain sensitive to daily developments and advancements in medical care and avoid neglecting their studies.

Furthermore, a particular feature of claims against obstetrics and gynecology departments is the assertion by patients of their rights to self-determination. In obstetrics and gynecology departments only, the proportion of cases in which the purpose of an explanation was to obtain patient approval for a procedure was significantly higher when a breach of the duty to explain was acknowledged than when it was not. For example, treatment and surgery applied without consent is often alleged in such instances. A typical case involved resection of a uterus with the approval of the husband, but not the patient herself; this was found to be illegal. Thus, in the absence of an emergency, the right of patient self-determination must be respected. Family relations often attend obstetrics and gynecology departments, and it is essential not to substitute an explanation to a family member for an explanation to the patient, who must herself consent.

The proportion of cases in which a breach of the duty to explain was acknowledged was significantly high among recent cases involving obstetrics and gynecology departments, and was similar to internal medicine departments. Furthermore, in internal medicine and obstetrics and gynecology departments, where physicians’ explanations carry great weight, the liability for a breach of the duty to explain was, in particularl, strongly emphasized. Moreover, the proportion of cases in which a breach of the duty to explain was acknowledged was higher among cases involving fewer disputed points, and was similar to that in internal medicine and surgical departments. Breaches of the duty to explain have not, generally, been the central issue at trials and have often been only an addition. However, several recent medical litigation cases have been filed due to breaches of the duty to explain alone, and the fact that breaches of the duty to explain tend to be acknowledged when there are fewer disputed points demonstrates their importance.

As described above, it is important that the communication style reflects what the patient expects of the medical specialist. Physicians must be accountable to their patients, and must therefore prioritize communication. Also, terminal disease, advanced age, emergency care, the need to die with dignity, euthanasia, and assisted suicide, all raise ethical issues, and such patients require different types of support. Characteristic features of surgeon-patient communication have not been described [7]. In the present study, we identified two important factors: patients value thorough explanations, and they insist on the right to make their own choices. However, as subspecialities increase in number, it will be necessary to carefully define the ethics of medical care by reference to physician skill and legal issues. In obstetricians, high medical standards are associated with good explanations. In the future, the question arises as to who will regulate the use of technology in saving lives, facilitating birth, and exploring aspects of heredity. Furthermore, will this be a matter for medical ethics, the law, or scientific associations to decide? Much further thought on such issues is required.

In summary, the accountability of obstetricians was ranked between that of physicians working in internal medicine departments and those working in surgical departments. Also, it is important for physicians working in obstetrics and gynecology departments to carefully explain the risks of death to patients, to adhere to high medical standards, and to obtain patient consent.