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Professional Liability

Prepare a defense of CP and other malpractice claims—before the lawyers get there

Your day in court can start as soon as the patient begins prenatal care. Here’s 1 way to prepare for it.

July 2007 · Vol. 19, No. 07


CASE: Two years after emergency cesarean, you are served

M.K., age 29 years, presents at term and in labor to the state-of-the-art hospital where you practice. During labor, transient slowing of the fetal heart rate (FHR) is detected, and you perform an urgent cesarean section, with successful delivery of the infant. Cord blood shows no evidence of acidosis, and the Apgar score is 8 at 1 minute and 9 at 5 minutes.

Two years later, after the child is diagnosed with ataxic cerebral palsy (CP), the parents file a $10 million lawsuit that names you as defendant.

Could you have done something to avoid litigation?

Absolutely! But the best preventive strategy has nothing to do with the science of medicine.

Because of the near certainty of being sued—usually, without merit—over the course of one’s career, an ObGyn has little choice but to practice defensive medicine. Until true tort reform is passed, we believe that physicians should rely on contract law to avoid lawsuits such as the one described above. The best defense begins at the patient’s first appointment, when she should be asked to sign a basic agreement. This article describes how such a strategy can greatly bolster your case should a lawsuit eventually be filed.

Avoiding the “death knell”

Until recently, a diagnosis of CP coupled with a lawsuit sounded the proverbial death knell for an obstetrician. The high stakes, long statute of limitations, and availability of “experts” willing to testify about standard-of-care violations all but guaranteed an early settlement. No obstetrician could risk presenting his or her case to a jury likely to be sympathetic to the plaintiff. The settlement of such cases was usually substantial—in the high 6 or low 7 figures—and the physician’s name was subsequently entered into the National Practitioner Data Bank. These settlements fueled high professional liability premiums, which remain extreme across the country.

Causes of CP are now more clearly understood

In 2003, the American College of Obstetricians and Gynecologists (ACOG) and the American Academy of Pediatrics published a report, “Neonatal encephalopathy and cerebral palsy: Defining the pathogenesis and pathophysiology” (NEACP),1 that challenged a number of long-held assumptions—among them the belief that electronic FHR monitoring can highlight fetal distress in time to prevent intrapartum fetal asphyxia and lower the number of cases of CP. (For the findings of this report, see “Tracing the origin of a case of CP.”) Sadly, electronic fetal monitoring has had no impact on the rate of CP, despite a dramatic increase in cesarean deliveries. A study by Nelson et al2 found that nonreassuring FHR patterns had a 99% false-positive rate for predicting CP.

The overall conclusion of the NEACP report: Most cases of CP are not the result of intrapartum events.

Tracing the (possible) origin of a case of CP

“Neonatal encephalopathy and cerebral palsy: Defining the pathogenesis and pathophysiology” (NEACP),1 the report published jointly by the American College of Obstetricians and Gynecologists and the American Academy of Pediatrics, was created to educate patients, physicians, and the public about the causes of cerebral palsy (CP) and provide a deeper understanding of what used to be called “birth asphyxia.”

The report also set out to identify cases in which intrapartum events can be implicated in the development of CP, with the aim of preventing them. According to the NEACP report, CP can be attributed to an intrapartum event when 4 “essential criteria” are present:

  • evidence of metabolic acidosis in fetal umbilical cord arterial blood obtained at delivery (pH <7 and base deficit ≥12 mmol/L)
  • early onset of severe or moderate neonatal encephalopathy in infants born at or beyond 34 weeks’ gestation
  • cerebral palsy of the spastic quadriplegia or dyskinetic type
  • exclusion of other identifiable causes, such as trauma, coagulopathy, infection, or genetic disorders

In addition, 5 other nonessential or nonspecific criteria may have a bearing on the timing of events leading to CP:

  • a sentinel (signal) hypoxic event occurring immediately before or during labor
  • a sudden and sustained fetal bradycardia or the absence of FHR variability in the presence of persistent, late, or variable decelerations, usually after a hypoxic sentinel event when the pattern was previously normal
  • an Apgar score of 0 to 3 beyond 5 minutes
  • onset of multisystem involvement within 72 hours of birth
  • early imaging study showing evidence of acute nonfocal cerebral abnormality.

According to these criteria, fewer than 30% of CP cases are caused by a lack of oxygen to the fetus during labor and delivery. Most cases apparently are caused by events that disrupt normal brain development before labor.

Given these criteria, it is critical to obtain cord blood gases and perform early imaging of the newborn brain to help define the cause of encephalopathy in a newborn. Also crucial is a thorough investigation of other potential causes, especially in view of the relative rarity of intrapartum events capable of causing this devastating condition.

Unreliable testimony propels many cases

The NEACP report is an important, peer-reviewed document, and although it could be labeled as self-serving, it does provide a road map for documenting, with evidence, how intrapartum events can indeed cause CP.

It can be argued that CP lawsuits unsupported by any of the NEACP criteria do not belong in court.

Frivolous cases often proceed with frivolous expert testimony, which can be defined as testimony that a majority or respectable minority in the field would not utter. Put a different way, if the expert is the only person holding a particular view, that unique opinion probably does not define the standard of care.

What can physicians do?

There are remedies available to physicians worried about frivolous lawsuits. The most effective strategy, we believe, is to be proactive: Have the patient sign a contract well before delivery in which she agrees not to sue indiscriminately in certain circumstances. Such a contract can include language requiring the patient to follow reasonable procedural guidelines if she does decide to sue.

If handled correctly, contract law can protect physicians. A reasonable contract does not ask the patient to forego all legal remedies; it does leave her with recourse in the event of negligence. Having a patient sign a blanket release would be considered an “abuse of power,” and the courts would probably dismiss such an agreement.

An enforceable contract has to withstand legal challenges. The contracts used by Medical Justice Services, the organization we established to protect physicians from frivolous lawsuits, define the expectations regarding resolution of concerns. For example, the patient agrees that the physician cannot be sued for a frivolous reason. It does not bar litigation for any reason—just for a frivolous reason. Should a legitimate dispute arise, both the patient and physician agree to use experts who are members of, and follow the code of ethics of, the physician’s professional specialty society—in this case, ACOG. The goal is to ensure that experts are reputable and accountable.

Breach of contract should also be defined in the document. For example, in obstetric and gynecologic cases, a conclusion by the ACOG ethics committee that court testimony is “frivolous” might be listed in the contract as a determinant of breach. Definitions and rules of procedure are often embedded in contracts.

Will such a contract hold up?

An unenforceable contract is described as “unconscionable.” In a recent legal case,3 the court determined: “To be unconscionable, ‘the contract must be such as no sensible man not under delusion, duress, or in distress would make, and such as no honest and fair man would accept.’”

The 2 provisions of the Medical Justice agreement—the promise not to bring a frivolous lawsuit and the mutual promise to use an expert in the same specialty who follows the code of ethics of his or her specialty society—would probably not be considered unconscionable. The first promise is already the law in every state and is reflected in numerous statutes; when addressed in a contract, such a statute is easier to enforce. The second promise focuses on the procedures for advancing a legitimate case.

As a reputable treatise on contract law points out, “There is a growing tendency for courts to uphold the right of parties to prescribe certain rules of evidence should a lawsuit arise out of the bargain between them, so long as it does not unduly interfere with the inherent power and right of the court to consider relevant evidence.”4 Therefore, those who sign contracts have some latitude to determine, in advance, how procedures might vary from general courtroom standards.

It is well established that patients and physicians can contract to use arbitration. Arbitration asks the plaintiff to forego her right to trial by jury in the presence of a judge. Imposing reasonable conditions for the use of expert witnesses is clearly less restrictive than requiring arbitration.

In 2 recent cases,2,5 the courts relied on several factors to determine that the contracts in question were not unconscionable:

  • Contractual provisions weren’t hidden but were instead highlighted, and the contract was otherwise easy to read and understand
  • The patient had the opportunity to read the contract fully and ask questions
  • There was no effect on the physician’s duty to provide reasonable care
  • The contract did not limit the liability of the provider to the patient.

What if the infant becomes the plaintiff?

An important question in obstetric-related lawsuits is whether the child is bound by the terms of a contract signed by the mother. Falling back on the arbitration analogy, there are ways to hold individuals who haven’t physically signed the contract—including a minor child and any attorney the patient hires—to the terms it spells out. A child can be bound by the mother in an agreement to arbitrate entered into during the prenatal period. In one case, a court interpreted the arbitration clause to apply to any claim arising from services under the agreement, even though the plaintiff had not been born when the agreement was signed.6 This case is of particular interest to ObGyns because it established a precedent that limits the right of children to sue even though they themselves never signed the agreement.

In another case,7 a spouse who did not sign the contract filed a lawsuit for loss of consortium due to a physician’s negligence. The court found that all claims arising from the alleged malpractice must be arbitrated when a patient signs a contract agreeing to arbitrate claims of negligence. Similarly, heirs in a wrongful death action were found to be bound by the decedent’s agreement to arbitrate when the contract required that claims by the “member’s heir or personal representative” be arbitrated.8

Can a contract be enforced retroactively?

ObGyns often have long-term relationships with patients. Or they may wish to implement the provisions described above after 1 or several prenatal visits. Is it possible to design a new contract to address past actions?


In California, there is a precedent for retroactive activation of an arbitration agreement. In 1993, the California Court of Appeals upheld an arbitration agreement that was defined for both future and retroactive treatment.9

Will a patient sign such a contract?

The short answer is “Yes.” Patients sign contracts all the time. They agree to pay their bill. They agree that records can be sent to referring physicians. They agree that they have made an informed decision about their care.

Medical Justice Services has a long track record of promoting such contracts as part of the physician–patient relationship. We have found that most patients are comfortable signing a contract that limits their right to sue to cases with clear merit and requires them to use reputable and accountable experts if there is a legitimate dispute. In this way, patients who deserve a remedy have full access to the courts.

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