How Complaints From a Single Doctor Caused the Gov’t to Take Down a Public Database

by Marian Wang
ProPublica, Nov. 10, 2011, 12:20 p.m.

An agency within the U.S. Department of Health and Human Services that maintains a discipline and medical-malpractice database reopened it for public access yesterday, two months after the agency had first taken the database offline.

The National Practitioner Data Bank contains information used by hospitals, insurers, and licensing boards to track doctors’ records, check prospective hires, and make other decisions. A publicly available version of the database — which removed confidential identifiers such as doctors’ names and addresses — had long been used by reporters and others interested in patient safety. In the years it was online, journalists could reference the database and, with additional reporting, could at times identify doctors with uniquely long histories of being sued or disciplined for medical malpractice.

Then, two months ago, the government cut off public access — a decision that was sharply criticized by a number of journalism organizations and consumer groups.

What was behind that decision? Apparently, one Kansas doctor with a trail of malpractice suits.

A public records request by Sen. Charles Grassley and the New York Times turned up documents about the decision that shows that the agency closed the database days after the doctor, Robert Tenny, complained to the government. Thanks to the database, he told the Health Resources and Services Administration, or HRSA, he was about to get unwanted attention in his local paper.

We culled through the documents and pulled out some interesting snippets that give a glimpse into the backstory behind why the public database was temporarily shut down and why — even now — the restored database has some new restrictions.

A brief timeline:

Aug. 16 – A local newspaper reporter requested a comment from a neurosurgeon, Robert Tenny, through Tenny’s attorney. The reporter, Alan Bavley of the Kansas City Star, was working on a story about doctors who have went undisciplined despite histories of malpractice allegations. He had used both the public database coupled with publicly available court records to do his reporting.

Reporter requests comment for his story from the doctor and his attorney. (p. 6)

Aug. 24 – The doctor sent a fax to Cynthia Grubbs at HRSA. Tenny asked for help, alarmed that the reporter had identified him and was poised to report on his malpractice settlements. The fax looked like this:

Alarmed doctor asks HRSA to ‘PLEASE HELP!’ after reporter contacts him. (p. 5)

Aug. 26 – The HRSA wrote to the reporter, warning that he could face at least $11,000 in fines for each violation of confidentiality. The doctor was copied on the letter.

HRSA warns reporter of penalties associated with disclosure of confidential information. (p. 2)

Sept. 1 – The agency cut off public access to the database.

Sept. 4 – An article ran on the front page of the Kansas City Star, telling the story of a woman who died in 2007 after undergoing a brain surgery with Dr. Tenny. It noted that Tenny had been sued at least 16 times for medical malpractice but had never been disciplined by the state’s licensing boards. (Update: Worth noting that according to the report, Dr. Tenny settled at least six of the 16 lawsuits; the others were either dismissed or the outcomes either weren’t clear. “In at least one case, the verdict was in Tenny’s favor,” the Star reported.)

On the same day, the doctor wrote to HRSA again, this time with a copy of the article, and he expressed a desire that this “will change the way public data is presented.”

The doctor urges HRSA to “change the way the public data is presented.” (p. 7)

Sept. 5, 7, 11, 14, 15, and 20 – Dr. Tenny wrote five more letters to HRSA, complaining that the newspaper was making “a concerted effort” to end his career and that the article “significantly questioned the security of your data.” He also speculated that the reporter had gotten improper access to information from the full data bank either from a local medical center or from a disgruntled former Data Bank employee.

Sept. 22 – The Kansas City Star wrote a story about how groups were urging that the database be reopened. Dr. Tenny wrote to HRSA again: “Stay strong and keep up the good work!” (The American Medical Association, around this time, also wrote a letter supporting the agency’s decision to remove the file.)

More encouragement from Dr. Tenny. (p. 45)

Sept. 26 – HRSA responded to Dr. Tenny’s six letters, telling him that the publicly accessible database had been removed, and that the agency had contacted hospitals to remind them of confidentiality requirements and sanctions for breaches of confidentiality.

HRSA responds to Dr. Tenny’s letters, telling him that it cut off public access to the data. (p. 50)

Nov. 9 - HRSA restored public access to the database, but as many reports have noted, it comes with a major caveat. According to the website, users of the new database are no longer allowed to combine information gleaned from the public database with any other publicly available information in a way that would identify doctors. Or in other words, the government is now trying to tell the public — including the press — what it’s allowed to do with publicly available information. (The agency told the Kansas City Star that it has a duty “to make certain that information about individual practitioners remains confidential.”)

Sen. Grassley and others have pledged to keep fighting the agency’s interpretation of the law, questioning whether the database is ultimately meant to protect the public or to protect physicians.

“The interpretation of the law ought to be for public benefit,” Grassley said. “A single physician complained that a reporter identified him through shoe leather reporting, not the public data file. One complaint shouldn’t dictate public access to federally collected data for 300 million people.”

We’ve called Dr. Tenny’s office for comment but have not received a response.

The Hypocrisy in Medical Malpractice Debate

Posted by Mike Bryant
Monday, October 24, 2011 9:27 AM EST

There are so many things to look at in the ridiculous claims that are often made by tort reform proponents who call for medical malpractice changes. Two areas that often come up are cost savings and the argument that doctors get sued all the time.

A couple of recent items caught my eye concerning each of these topics:

- There is so much fraud out there in the health care system. Sure there can be cost saving if you simple rewrite the Constitution and take away people’s right to sue. You would still have society having to pay for all of the damage that was left behind. But, shouldn’t we start with the Medicare fraud that is out there?

The Washington Post recently reported that :

Miami health-care executive Larry Duran orchestrated one of the largest Medicare frauds in U.S. history, submitting more than $205 million in phony claims and landing a record-breaking 50-year prison sentence for his crimes.

But another piece of Duran’s scheme also caught the eye of prosecutors. They say he extended his fraud through his lobbying efforts, all aimed at getting official Washington to make it easier for mental health centers such as his to make money.

An advocacy group he helped set up, the National Association for Behavioral Health (NABH), has spent more than $750,000 on lobbying efforts over the past five years, including staging “fly-ins” on Capitol Hill and providing advice to group members on how to get around Medicare denials, according to the Justice Department. The group also held fundraisers for lawmakers such as Sen. Mary Landrieu (D-La.) and former congressman Kendrick B. Meek (D-Fla.), records show.

There is a lot of money out there that is simply being stolen and doesn’t seem to be as important to the tort reformers. There needs to be a crack down on the real problems in the system.

- Poptorts took a look at how doctors aren’t really afraid of the courtroom as long as they are suing. Including a United States Supreme Court case where they are fighting to have the right to bring the suit. As is pointed out:

Imagine not being able to bring a lawsuit in a situation like this, when doctors have clearly been wronged, and when the poor are going to suffer for it, right?

If only the ER docs saw the same value helping poor folks get proper treatment like this as helping some of those same patients who are negligently injured. For example, last November, we wrote about Florida legislation that would give ER doctors who treat Medicaid patients “sovereign immunity,” and cap their liability for committing medical negligence against the poor at $100,000.

I wonder if they really understand the hypocrisy and simply don’t care?

Find this article at:

http://stcloud.injuryboard.com/miscellaneous/the-hypocrisy-in-medical-malpractice-debate.aspx?googleid=294972

Med-mal cap does not pass constitutional muster

ALM Properties, Inc.
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Robert Peck of the Center for Constitutional Litigation responds to James Ho’s op-ed about medical malpractice reform.

September 12, 2011

In “Federalism and medical malpractice reform” [NLJ, Aug. 29], Gibson, Dunn & Crutcher partner James Ho defended H.R. 5, the congressional medical-malpractice damages cap bill against some carefully selected constitutional attacks. Missing from his attempt to justify congressional authority to amend state tort law was any willingness to grapple with fundamental constitutional principles that stand as insuperable obstacles to what H.R. 5 would do.

A federal law capping compensatory damages in state tort actions brought by the most catastrophically injured victims of substandard medical treatment cannot comport with the Seventh Amendment, which guarantees the right to trial by jury. The courts apply a historical test to determine whether constitutional jury-trial rights are infringed. The most recent review of that historical record by the U.S. Supreme Court occurred in a 1998 unanimous opinion written by Justice Clarence Thomas, which found that, under the English common law that predated our Bill of Rights, jurors are “the judges of damages.” The Court then explained that any deviation from that venerable practice, which treats damages as part of the jury’s determination of the facts, fails to satisfy the “substance of the common law right” that the Seventh Amendment enshrined. Feltner v. Columbia Pictures Television Inc., 523 U.S. 340 (1998). It is worth mentioning that the winning advocate behind this argument was a lawyer named John Roberts Jr., now chief justice of the United States.

The Court reiterated the jury’s unimpeachable authority over any determination of noneconomic damages, the type of compensatory damages that H.R. 5 specifically attempts to limit, in Cooper Industries Inc. v. Leatherman Tool Group Inc., 532 U.S. 424 (2001). There, the Court held that punitive damages were no longer a fact to be found by the jury under the Seventh Amendment but instead an expression of the community’s moral outrage at the misconduct and subject to judicial revision in accordance with due-process principles. The Court took pains to contrast the “evolved” status of punitive damages, which were jury-determined facts as long as they compensated for intangible injuries, with noneconomic damages, which remain “a question of historical or predictive fact,” within the exclusive province of the jury. For that reason, numerous state courts have struck damages caps for violating the cognate protection of jury rights found in their state constitution.

Mr. Ho also picked a single federal constitutional argument among many made in the course of still-pending Texas litigation to deride — that the Texas cap constitutes a taking, a position that former Justice Sandra Day O’Connor has suggested is correct.

A cap reduces compensation for proven invasions of bodily integrity supposedly to promote the public availability and affordability of health care. When full compensation for surgically removing the wrong ovary is denied through a cap, as in a case now pending before the Kansas Supreme Court, it becomes the obligation of the state to make up the difference between the jury’s verdict and the limitation. The argument thus has far more traction than Mr. Ho concedes.

CONFUSING CLIENTS WITH LAWYERS

In addition, Mr. Ho’s assertion that one of my law firm’s clients, the American Association for Justice (AAJ), ought to be consistent in its opposition to H.R. 5 with the arguments we make in court, fails to appreciate the difference between clients and their lawyers. AAJ does nothing hypocritical in emphasizing the fact that the federal government has no authority to amend state tort law, even as I argue in court that state constitutions generally prohibit such caps. After all, in the seminal case of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), the Court made plain that “Congress has no power to declare substantive rules of common law applicable in a state,” even if the subject is “commercial law or a part of the law of torts.” That Congress could have the authority to alter state law directly was specifically considered and rejected by the framers of the Constitution. Plainly, H.R. 5′s proposed damage cap is unconstitutional any way one looks at it.

My firm, the Center for Constitutional Litigation (CCL), which does no lobbying, need not limit its in-court legal arguments to those made by AAJ, a client, in a different venue, even though our interests in assuring full and fair remedies to those injured through the fault of others coincide. And AAJ need not limit its arguments in Congress against H.R. 5 to those CCL makes in court. If that were so, members of Mr. Ho’s firm could be accused of being “funded” and limited to the arguments of its clients. In two of the most recent cases in which CCL and Gibson Dunn were opposing counsel, Gibson Dunn represented Philip Morris and a collection of tort reform groups (in neither case was CCL representing AAJ). Yet to suggest that those clients limit their arguments in lobbying forums to those that Gibson Dunn has used on similar issues in court is to deny the independence of the bar — and the separate existence of the client. Requiring such unity of voice of lawyers and clients regardless of the forum is the veritable bridge too far.

Robert S. Peck
Washington
The writer is president of the Center for Constitutional Litigation.

Hospital Errors May Occur In A Third Of Admissions

The Huffington Post Catherine Pearson  First Posted: 04/ 7/11 11:59 AM ET Updated: 04/ 7/11 12:27 PM ET

 

People go into hospitals expecting to be taken care of, but a new study shows that “adverse events” — injuries caused by hospital error — are 10 times more frequent than previously estimated.

The new report from the journal Health Affairs looked at samples of inpatient records from three leading hospitals across the country — all of which have made efforts to improve their overall quality and safety by investing heavily in new programs and research projects. But in spite of those efforts, researchers found that adverse events occurred in as many as one-third of all admitted patients.

The study’s authors evaluated the incidence of adverse events using several methods — among them, the so-called “Global Trigger Tool” designed by the Institute for Healthcare Improvement, which coauthored the study.

The tool, which is already used by many hospitals across the country, helps detect incidences of harm, or what the study’s authors described as “unintended physical injury resulting from, or contributed to, by medical care.”

Using the new method, scientists logged 345 “events” or hospital errors out of a pool of 795 records. When they evaluated the records using other methods (including local hospital reporting systems) they found only between four and 35 hospital errors. Which led them to conclude that previous estimates of hospital errors have likely been significantly off — a fact that could derail a decade-long effort to improve hospital safety in the U.S.

The study’s authors conclude:

Our findings indicate that two methods commonly used by most care delivery organizations … fail to detect more than 90 percent of the adverse events that occur among hospitalized patients. Reliance on such methods could produce misleading conclusions about safety in the U.S. health care system and could misdirect patient safety improvement efforts.

Perspective: Who Is Supervising the Supervisors?

Copyright 2010. ALM Media Properties, LLC. All rights reserved. New York Law Journal Online

Steven E. Pegalis

09-07-2010

Nurse practitioners and midwives can “treat” patients only if they have physician supervision.¹ The media has recently reported a “turf war” dispute between physicians and these non-physician health care providers. One non-physician maintained doctors do not like having to compete for the business.²

The Medical Society of the State of New York (MSSNY) has supported the position of physician organizations such as the American Congress of Obstetricians and Gynecologists (ACOG) in opposing legislation that would allow these non-physicians to practice without written agreements requiring supervision because, physicians maintain, such autonomous unsupervised care would be unsafe for patients.³

Dr. Leah S. McCormack, current president of MSSNY, in opposing such non-physician autonomy said that “it’s a question of patient health and safety,…[they] should have gone to medical school and then residency” if they “wanted to practice medicine.”⁴

Nurse practitioners maintain they want only their “piece of the health care pie” and that “any illness that requires a specialist…is immediately referred to one.” Dr. McCormack replies that “they don’t know what they don’t know.”⁵

A discussion of these “turf war” disputes from the patient’s perspective should include an understanding of how tort reform influences patient safety. The Institute of Medicine (I.O.M.), in its landmark report, stated that designing a better system does not mean that individuals can be careless and that “people still must be vigilant and held responsible for their actions.”⁶ Further, the report states that “unsafe care is one of the prices we pay for not having organized systems of care with clear lines of accountability.”⁷

The premise of this article is that tort reform advocates seek changes that will produce partial or even complete liability immunity. Immunity erodes accountability and is therefore unsafe.

MSSNY has supported broad-based tort reform initiates on behalf of its physician members and supported ACOG’s program for complete immunity from claims made against its obstetrical members by brain injured children.⁸ ACOG continues to urge a no-fault system because allegedly a brain injury occurring while the fetal patient is being monitored in the hospital is rare and not preventible.⁹

Yet, ACOG opposes home births managed by midwives because “the hospital setting is the safest place to have a baby” and “home birth midwives are not accountable to the public.”¹⁰ Midwives in support of autonomy contend that written physician supervision agreements don’t create or provide real supervision as supervision is “nowhere in current law.” Midwives add that opposition to home births is “…a fear-based position not supported by data” because “…home birth is safe with the proper candidate.” One midwife stated that even without a written agreement, she will continue to consult with physicians and refer tough cases to them.¹¹

Midwives assure us they can safely do home deliveries “with the proper candidate.” Midwives and nurse practitioners assure us that their practice of medicine without physician supervision will be safe because they will immediately refer when indicated. Dr. McCormack’s pointful comment is that they “don’t know what they don’t know” because they have not had equivalent years of physician training.¹² Meaningful supervision exists only if the supervision makes care safer. If current midwife supervision agreements have no true function, as midwives contend, then midwives and the obstetricians who have agreed to supervise them have been engaged in a charade.

Home birth unequivocally is unsafe. Midwives are unequivocally wrong that they can safely choose the proper candidate. Even if midwives always would identify the “proper candidate,” a complication still can arise during the birth process requiring physician and hospital response.

Equally wrong are ACOG endorsed claims that monitoring the fetal patient in the hospital cannot influence the outcome. Thus, ACOG correctly is on the side of their patient for safer care in the context of a “turf war,” but opposed to the right of their fetal patient to sue for preventable brain injuries.

Patient safety has been defined as the prevention of health care errors, and the elimination or mitigation of patient injury caused by errors. A healthcare error has been defined as an unintended outcome caused by a defect in the delivery of care to a patient.¹³

Immunity is unsafe because it erodes accountability. Patient-safety discussions degenerate into lip-service if patients do not have an unfettered right to sue when malpractice occurs.

Troubling Positions

The inconsistency between the pro-safety positions taken by Dr. McCormack, supporting for example, the idea that unsupervised home deliveries are unsafe (which they are) and the anti-safety position MSSNY takes in supporting ACOG’s quest for immunity when in fact, contrary to ACOG’s claim, proper in hospital care unequivocally can prevent catastrophic harm to mother and baby, is particularly troubling.¹⁴

Methods used by the American Society of Anesthesiology (ASA) to dramatically improve patient safety and lower liability costs have not been used by ACOG.¹⁵

In resisting autonomy for non-physicians, Dr. McCormack asks “why are they so bound and possessed, so adamant to get the right to practice independently? Is it really so onerous to have a physician checking on them? I would think they would want that.”¹⁶

One of the goals of physicians is to engage in effective peer review activities to avoid oppressive regulation and to allow physicians to maintain control over the standards of their own profession.¹⁷ Yet prominent physicians have noted that with regard to medical error and its prevention, the profession has, with rare exceptions, adopted an ostrichlike attitude.¹⁸

If good doctors speaking through their general medical organizations like MSSNY and specialty organizations like ACOG would embrace the idea that all of their patients should have full access to attorneys, who would pursue meritorious cases, that would promote the idea that doctors accept accountability even from unpleasant liability cases. This would be consistent with their ethical mandates and would prove that doctors can be trusted to promote patient safety. That would truly be a win-win scenario in which injured patients have full appropriate redress and the medical profession would use the information from each case as an important part of the process to make future care safer.

The ethics of the medical profession require physicians to “participate in the process of self-regulation” including reporting colleagues who they know are impaired or incompetent to practice medicine. Yet a recent survey revealed that one-third of physicians disagreed that reporting should be their obligation, and a significant percentage of physicians did not report incompetence or impairment of colleagues despite personal knowledge that such existed.¹⁹

What does this survey tell us about patient safety, when the ethics of the profession also mandates that physicians objectively evaluate their own practice and then mandates a truthful disclosure to their patients regardless of the legal consequences?²⁰

Who is supervising the supervisors? Can we trust physicians as a group to have their own autonomy so they can decide what is safe for their patients? A malpractice crisis is something terrible happening to a patient, not to the physician/health care provider who could have prevented the crisis. When MSSNY and physician specialty organizations like ACOG abandon tort reform efforts and fully accept the accountability that comes with their patients’ unfettered rights, that will signal a giant patient safety breakthrough.²¹

Steven E. Pegalis is the senior partner of Pegalis & Erickson in Lake Success.

Endnotes:

1. Education Law §6542 and §6951.

2. Delthia Ricks, “Medical Melee: Bill Would Allow Nurse Practitioners to Practice on Their Own; Doctors Object,” Newsday, June 13, 2010; Claude Solnik, “Midwives See More Autonomy, Docs Push Back, Claiming Patients Would Be Put At Risk,” Long Island Business News, June 18-24, 2010; Delthia Ricks, “Independence Bill For N.Y. Midwives,” Newsday, July 2, 2010.

3. Solnik, supra note 2; Ricks, supra note 2, Newsday, July 2.

4. Ricks, supra note 2, Newsday, June 13.

5. Id.

6. Inst. Of Med., “To Err Is Human: Building a Safer Health System” (Linda Kohn, et. al., Eds. 2000) at p. 5.

7. Id., at 3-5.

8. See: MSSNY, Submissions to the New York State Medical Malpractice Liability Task Force (Oct. 16, 2007 and Dec. 19, 2007) (on file with the author).

9. Richard L. Berkowitz, et. al., “A Proposed Model For Managing Cases of Neurologically Impaired Infants,” 113 Obstetrics and Gynecology 683 (2009) and Alastair Mac Lennon, et al., “Who will Deliver our Grandchildren? Implications of Cerebral Palsy Litigation,” 294 JAMA 1688 (2005).

10. ACOG Press Statement on Midwifery Bill, July 1, 2010.

11. “Midwives See More Autonomy;” “Independence Bill For N.Y. Midwives,” supra note 2.

12. “Medical Melee,” supra note 2.

13. Definitions Approved by the National Patient Safety Foundation (NPSF) Board, July 2003.

14. See Robert Conason and Steven E. Pegalis, “Perspective: Avoidable Brain Damage and Medical Liability,” New York Law Journal, April 22, 2009.

15. Id.

16. “Medical Melee,” supra note 2.

17. Ronald L. Goldman, “The Reliability of Peer Assessments of Quality of Care,” 267 JAMA 958, 958-60 (1992).

18. David Blumenthal, “Making Medical Errors Into ‘Medical Treasures,’” 272 JAMA 1867, 1867-68 and n. 23.

19. C. Desroches, “Physicians’ Perceptions, Preparedness For Reporting, and Experiences Related to Impaired and Incompetent Colleagues,” JAMA, 2010; 304(2): 187-193.

20. AMA Code of Med. Ethics: Patient Information, at E-8.12

21. See Steven E. Pegalis, “A Proposal to Use Common Ground that Exists Between the Medical and Legal Professions to Promote a Culture of Safety,” New York Law School Law Review, Vol. 51 – 2006/2007.

Midwife bill becomes law

Long Island Business News

http://libn.com/blog/2010/08/02/midwife-bill-becomes-law/

Midwife bill becomes law

by Claude Solnik

Published: August 2nd, 2010

New York has done away with a requirement for midwives to obtain a letter of permission in order to practice, thanks to legislation Gov. David Paterson signed into law.

The roughly 1,300 midwives in New York needed an obstetrician or hospital providing obstetric services to sign written practice agreements.

New York, however, has now become the 16th state to dispense with these agreements, joining states such as Connecticut, Minnesota, Maine, New Hampshire and Oregon.

The majority of states still require these agreements, designed to mandate links between hospitals and doctors and midwives, in order to assure continuity of care in case of emergency.

Opponents of these written practice agreements, however, argued midwives already were qualified and that the permission was a barrier that, especially in rural areas, prevented some from practicing.

Midwives on Long Island who specialize in home delivery sometimes had problems in obtaining letters from doctors, who favor delivery in hospitals. Midwives in New York City who had agreements with St. Vincent’s Medical Center, which is now closed, have had to scramble to set up new agreements.

“This is an important step forward for women’s health,” said Health Committee Chairman Richard N. Gottfried and Health Committee Chair Thomas K. Duane, who sponsored the bill in the Assembly and Senate, respectively.

Gottfried said midwives perform about 15 percent of the state’s noncesarean deliveries, with “exceptionally high rates of successful outcomes and patient satisfaction.”

But opponents of the legislation argue it’s important for midwives to have a close link to obstetricians and hospitals, in case of complications. They worry this is a move away from medical doctors’ oversight and a push for freedom that may have more to do with midwives’ interests than what’s best for patients.

Midwives opposed to the legislation argued that all health care practitioners must be equipped to summon specialists, but that doesn’t mean they need special agreements.

Must One C-Section Beget Another? Published: July 26, 2010-

Re “New Guidelines for Caesareans” (front page, July 22), about new obstetrical guidelines for vaginal birth after Caesareans:

http://www.nytimes.com/2010/07/27/opinion/l27caesarean.html?scp=2&sq=medical%20malpractice&st=cse

A fundamental patient safety issue is at the heart of our high C-section rate. The reason that hospitals must have staff “immediately available” for an emergency C-section is that when a mother’s uterus ruptures, the baby’s lifeline is cut off and brain damage begins in around 17 to 18 minutes, according to the best studies.

Rupture occurs in about 1 percent of vaginal birth after Caesarean (VBAC) attempts. That’s a high enough risk — with lifelong consequences to the child and his or her family — that only the reckless or the ill informed would tempt fate by trying delivery in a facility without an obstetrician immediately available to do an emergency C-section.

According to your article, hospitals complain of the risk of being sued for a bad outcome if they follow the old guideline of having the surgical team “readily available,” which allows calling in a team from outside the hospital, as opposed to “immediately available.”

We should not let semantics obscure safety. Instead of blaming lawsuits for the high C-section rate, the focus should be on hospitals that don’t want to invest the resources necessary to make VBAC safe for mothers and families.

Patrick Malone
Washington, July 23, 2010

The writer is a lawyer and the author of “The Life You Save: Nine Steps to Finding the Best Medical Care — and Avoiding the Worst.”

•

To the Editor:

We are board-certified obstetrician-gynecologists in private practice for more than 25 years and are saddened to see what has happened to our profession over that time. Unfortunately, the current legal environment has created a situation in which nothing short of a perfect outcome, something not found in nature, is acceptable.

In that spirit, our residents are no longer being trained to do operative obstetrics, and so the young doctors do not know how to do forceps deliveries or vaginal breech deliveries. These are means by which a primary Caesarean section could be avoided.

The art of obstetrics has saved countless lives over the last few centuries. Yet the current malpractice law environment has become so toxic that we can no longer practice or teach these skills.

Although the risk of uterine rupture is quite small, many doctors have stopped encouraging patients with prior C-sections to consider a future vaginal birth. As long as the legal climate remains unchanged, it is unlikely that the pendulum will swing back again toward an atmosphere where both physicians and their patients will enthusiastically consider VBACs.

Laurie R. Goldstein
Rebecca C. Brightman
New York, July 22, 2010

•

To the Editor:

Your article’s use of the term “normal” for vaginal deliveries implies that there is something abnormal about Caesarean deliveries. With more than 30 percent of all live births in 2007 being done by Caesarean, women do not need to be made to feel that they have in some way done something abnormal.

Lonnie Swarz
Wayland, Mass., July 22, 2010

•

To the Editor:

Dr. Richard N. Waldman’s hope that “everybody will get together and do the right thing” with regard to VBAC is unrealistic. The National Institutes of Health dreams of 37 percent VBAC rates, and patient advocacy groups assert that we oppress women by refusing them VBACs, but our legal system offers no protection to hospitals and physicians that do offer VBACs.

I practice obstetrics at a hospital with full-time anesthesiologists and full-time obstetricians. I encourage VBAC only in motivated, highly educated patients who are good candidates medically and can truly give “informed consent.” With these ideal circumstances, I see a 50 to 70 percent success rate and close to a 100 percent “satisfaction” rate.

Without such advantages, I would not offer VBAC. I do not begrudge my colleagues who choose to avoid a potentially career-ending lawsuit by simply performing repeat Caesareans, or women who choose repeat Caesareans over “chancing it” in hospitals that can’t provide the staff necessary to make VBAC truly safe.

Until our nation’s broken malpractice system is addressed meaningfully, I am afraid we will continue to see both primary and repeat Caesarean rates skyrocket.

Rebecca Amaru
White Plains, July 22, 2010

•

To the Editor:

Under new medical guidelines “natural birth” fetishists can more easily choose vaginal birth after a Caesarean, which results in what your article describes as “quite low” rates of uterine rupture (.7 to .9 percent).

Low? How many severely injured women and brain-damaged babies with multimillion-dollar medical and education bills do those “low” rates yield? And for what benefit?

How many physician hours and medical malpractice insurance dollars are to be expended on the inevitable lawsuits brought by the angry parents who regret their choice?

Paul P. Rooney
Glen Ridge, N.J., July 22, 2010