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Re: VBACFrom: RModugno@aol.comMon Apr 11 12:43:22 2005
This guest editorial from OB/GYN News says it all. Robert Modugno MD MBA FACOG Guest Editorial Informed Consent for Attempted VBAC Dennis J. Sinclitico, J.D. MR. SINCLITICO is an attorney specializing in medical malpractice law in Long Beach, Calif. There are certain topics that we just can't discuss enough, and attempted vaginal birth after a previous cesarean section is one of those. VBAC and informed consent for VBAC seem to be the topics du jour in every obstetrics program. The number of VBACs seems to have declined following concerns about the risk for uterine rupture. Some physicians prefer elective C-sections to VBAC because of large monetary awards in medical malpractice lawsuits dealing with VBAC, such as a $30 million judgment in Philadelphia. Is there life after this death for VBAC? As your friendly defense lawyer, I can tell you those are hard cases to defend. A recent prospective, multicenter study that provides the first solid data on the risks of VBAC showed that only (0.7%) of 17,898 women who attempted VBAC for a term singleton developed uterine rupture. Only 12 term infants in the VBAC group developed hypoxic-ischemic encephalopathy, 7 of them in the uterine-rupture subgroup. The absolute risk for hypoxic ischemic encephalopathy was approximately 1 case per 2,000 women attempting VBAC at term (N. Engl. J. Med. 2004;351:2647-9). Even though the risks of a bad outcome are small—and ongoing statistics support that—those statistics take flight when you're in the witness chair and a catastrophically affected infant is with a parent in another witness chair. You'll notice that when speakers at meetings present statistics about the risks or benefits of VBAC, there are no photographs of a catastrophically affected infant. But the jurors will see that. When a case goes to trial, the focus is on the care and treatment provided by a specific physician for a specific patient with a specific kind of outcome. In that setting, the risks seem much different than they do in studies. That's why most obstetricians are voting to do cesarean section instead of VBAC. They've seen the results in accounts from their peers, in discussions in the literature, and in the media. While there were only 12 cases of hypoxic ischemic encephalopathy in the recent multicenter study, if we assume that each of those cases went to trial and the plaintiffs won only 10% of the large award in the Philadelphia case, that totals $36 million, plus untold millions of dollars spent defending those cases. If you choose to provide VBAC, I suggest getting informed consent in the patient's handwriting. Most informed-consent documents are forms, and that's a problem. They're not individualized to any degree and to any specificity. Even though your consent process might be substantial, the extent to which you and your staff provided informed consent is poorly documented in a form. Absent an individualized, specified consent document, what happens is that the mother says in court, “I don't know. …He shoved it in front of me and I just signed.†That's what the plaintiff will say in almost every situation. Having the mother write out her informed consent is a lot better for your defense. Better yet—pull out the video camera and document the consent process. Simply having a form with a signature acknowledging that the consent process has taken place is a prescription for disaster. That won't fly in court.
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