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Professional Liability


“No-fault” insurance that covers a pregnancy and birth

The author envisions one-child-at-a-time policies that will blunt the OB malpractice crisis. Could it work?

July 2009 · Vol. 21, No. 07

IN THIS ARTICLE

The author reports no financial relationships relevant to this article. Support for the development of the manuscript of this article includes a grant from the American College of Obstetricians and Gynecologists.

The practice of obstetrics is in crisis because of the ever-rising cost of malpractice insurance. Premiums have become so burdensome in many states that they discourage physicians from providing OB care.

And matters grow worse: Many insurance companies are discontinuing liability coverage altogether. With providers unable to afford or obtain insurance, we seem doomed to see a repeat of the loss of OB services that led to harm to patients in the past.1,2

But if we can discern a crisis at hand, isn’t it reasonable to act to develop a solution that prevents, or solves, the problem? In the past, we waited until the system collapsed—to the detriment of patients, their infants, and physicians. In earlier crises in some states, good solutions ultimately allowed for the return of OB care.3,4

Experience has taught that, sadly, state legislatures usually act only after the system collapses; then, they may opt for the easiest (often temporary) solution instead of the best one.

In this article, I offer a solution to the malpractice insurance crisis that is easy and that may also be the best one possible. The solution covers three areas of concern:

  • payment (including who pays for the policy)
  • description of the policy (i.e., the benefits provided)
  • regulations and contracts involved (to optimize medical care and minimize medical costs).

A proposal to create “no-fault” pregnancy insurance

I believe that a good solution to the impending crisis in OB medical liability is a form of no-fault, mutual insurance in which policies are written for one pregnancy at a time—just as air travel insurance is written for one flight at a time. A policy would be designed to protect a mother and baby while improving the quality of OB care.

This innovation would provide for continued availability of OB care when the current medical liability system collapses. The physician could pay the premium for the one-pregnancy policy, or it could be paid for directly by the mother’s health insurer, which is paying for the rest of her health care (i.e., an enterprise medical liability solution, which provides a financial incentive for the insurer to help provide excellent, not just the cheapest, OB care).5

I call this solution Mothers Mutual Medical Liability Insurance. Here, I refer to it as “3MLI.”

Keeping patients safe

No question: Medical errors that harm patients are far too common in our current system.6 But malpractice litigation as a deterrent to medical mishap? That has been a failure. Patients, after all, sue their physician to be made whole after they have suffered an injury—but not for any punitive purpose.

As the Institute of Medicine (IOM) said in its landmark report on medical errors: “When an error occurs, blaming an individual does little to make the system safer and prevent someone else from committing the same error.”7 What is needed instead, according to the IOM, is creation of an environment “conducive to encourage healthcare professionals and organizations to identify, analyze, and report errors without the threat of litigation and without compromising patients’ rights.”

That is the environment that 3MLI could bring about.

Mothers Mutual Medical Liability Insurance (3MLI)
has its benefits

Several features make a 3MLI system appealing—to all parties. Such a system:

  • preserves a patient’s right to sue
  • offers a no-fault settlement option as an alternative to litigation
  • avoids blame and punishment, which are demonstrably ineffective at minimizing medical errors
  • links to a system to optimize the standard of care and record keeping
  • guarantees health care and ancillary services for as long as needed by the patient and family
  • covers case management services, life insurance, and ongoing legal advocacy
  • includes ACOG accreditation to assure clinical excellence and minimize the risk of adverse outcome
  • creates a database of adverse obstetric outcomes that add to our knowledge about causes and possible preventions

This way to a better way

An ideal 3MLI system for providing OB care would have to:

  • ensure continued availability of services
  • allow for the care of all infants who need help, with expanded opportunities for families to obtain needed medical, economic, and legal assistance
  • establish an objective, critical evaluation of the quality of care, with built-in incentives for continuous quality improvement
  • end battles over tort reform
  • preserve victims’ right to sue
  • offer a no-fault option sufficiently attractive that most patients would prefer it to the uncertainties of a lawsuit
  • create a structure in which payers, patients, providers, lawyers, and government are on the same side, with the potential for increased financial efficiencies and improved health-care outcomes
  • provide the full spectrum of services—possibly lifelong—that an injured infant may require
  • avoid costly, lengthy, often futile litigation.

How would the system work?

Coverage comes one pregnancy at a time. A 3MLI policy covers an individual pregnancy. In the event of an adverse outcome, the patient preserves her right to sue. The policy provides liability insurance to cover the cost of a lawsuit and payment for an adverse outcome or a system to assist a disabled infant and its family.

Quality assurance is built in. For a pregnancy to be covered, the system requires a guideline-based, quality assurance system to optimize 1) the quality of care and 2) record keeping. Only OB providers who agree to participate in all aspects of the 3MLI system would have medical liability coverage—coverage that includes full participation in case reviews for adverse outcomes as well as use of record systems and appropriate guidelines for OB care.

It offers an attractive no-fault option. When a disabled infant is born or other adverse outcome of an insured pregnancy occurs, 3MLI provides parents with a no-fault settlement option as an alternative to filing a malpractice suit. Medical care needed by the infant or mother as a result of complications to pregnancy, a congenital defect, or perinatal mis-adventure not otherwise covered by primary insurance or a government agency would be covered by 3MLI for as long as needed—in some cases, for life. Women who choose this option forego the right to sue, with all the delays and uncertainties that malpractice lawsuits typically involve.

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Enhanced coverage is part of the policy. Women covered by a 3MLI policy are provided with support services they need to obtain access to medical services (including transportation, if needed) during prenatal care. In an adverse outcome, additional services (such as home nursing care and other appropriate domestic assistance) are included, and are coordinated whenever possible with existing coverage provided by patients’ health insurance or by government programs. Rehabilitation and physical therapy are initiated at the earliest appropriate time to minimize long-term disability.

It provides case management. The no-fault policy also includes the services of a case worker to advocate for mother and child. The case worker coordinates the involvement of the primary health insurance company, HMO, government agencies, and other third-party payers, as well as charities, community support groups, and other agencies—all in the interest of providing the best and most effective care possible.

The case worker receives legal assistance to mobilize resources and assistance in a timely manner, thereby promoting a good medical outcome. Case management services continue to be available for a disabled child, even after the death of parents and other family members. Note that these services can be utilized during the pregnancy (coordinated with the OB provider) to help prevent adverse outcomes, as well as after delivery.

It offers life insurance and legal advocacy. The no-fault settlement option includes life insurance for the mother and offspring and pays for legal counsel to advocate for the rights and benefits of the pregnant woman during pregnancy and the injured or disabled party (if any) afterwards. This lawyer could not serve as a plaintiff attorney, and would be paid for services rendered—not on contingency. Legal tasks could include:

  • working with the case worker to secure appropriate and timely care when red tape and bureaucracy threaten to deny or delay it
  • helping to prevent further adverse outcomes
  • designing trusts for the long-term maintenance and care of a disabled infant.

It promotes quality improvement. The settlement benefit of 3MLI provides for a complete and open review of the circumstances associated with the adverse outcome. Because no lawsuit and no adversarial relationship would exist, it becomes possible to compile cases and promote true quality improvement.

Bad outcomes that arise from a poor system of care, physician error or negligence, government regulation (such as bureaucratic delay in initiating care or regulations that prevent optimal OB care), or any other cause are objectively categorized, and recommendations for improvement are made. Case reviews are undertaken by national professional organizations, such as the Society for Maternal–Fetal Medicine and the American College of Obstetricians and Gynecologists (ACOG), and local committees.

These reviews are then fed into a central database that permits objective understanding of the magnitude, and possible causes, of infant disability. The impact of such studies would be to prevent similar problems, when possible, and to provide the most appropriate care, when necessary. Individual practices and physicians are accredited by ACOG or the American Board of Obstetrics and Gynecology (ABOG) before being allowed to participate in this program.

In addition:

The insurer is a nonprofit, mutual insurance company. Each policyholder has a voice in how the system functions. 3MLI must be a mutual company that maintains long-term potential value to the patient who owns the policy. It must never be allowed to demutualize, so to speak, or to be run by a for-profit company.

The policy has a specified life. A 3MLI policy lasts from the time it is purchased, in pregnancy, until the child reaches 21 years of age (unless, in the case of a bad outcome, the lifetime medical and support benefit is activated). At some time, it is possible that the policy could be converted to another form of mutual health insurance for children who do not have a disability.

Coverage. Questions about which infants need assistance and how disability is defined can be resolved by families, physicians, and legal counsel available to each family as part of this plan. Note that no large financial payment occurs under the no-fault settlement option, so a financial incentive for fraud by the family of the disabled child does not exist.

The 3MLI system is a mutual insurance system with potential benefits (such as dividends or paid-up insurance) to the mothers and families only if money is left in the system. This motivates systemic efficiency and appropriate use of resources, and encourages improving OB care from the patient population point of view.

What is the foundation of such a system?

3MLI would be structured as one, or more, insurance companies set up to provide the services that I’ve outlined. Rather than directly providing all health-care funding for disabled infants, 3MLI would obtain access to, and help maintain, existing health insurance policies and draw on other resources, when available. These could include, as needed, Medicaid, SCHIP, charity and government-run early-intervention programs, and private providers. In short, it would use collateral sources of health care and other resources in fulfilling its mission.

A 3MLI insurance system might also arise from physician-owned mutual medical liability companies or from self-insured medical liability systems, such as the ones found in large hospital systems. HMOs or health insurance companies could develop a 3MLI system as well. Government-related institutions and universities or state health departments with a need to find OB care for indigent populations could also develop 3MLI insurance systems. Initial funding could also come through demonstration projects underwritten, in part, by government or foundations.

Continued...
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