Public Health Law Map - Beta 5 - Medical and Public Health Law Site

insured obstetrics patients. This is seen as a particularly attractive market because of
the many ancillary services to be sold to affluent patients. These marketing strategies
have varying impacts on patients’ medical care. Providing comfortable waiting
rooms or champagne for the family may attract patients, but it does not ensure
quality medical care. Offering birthing rooms and informal settings can be beneficial
to the patient but requires changing the practice habits of obstetricians and
pediatricians.
Marketing obstetrics services becomes a legal problem when it reinforces the illusion
that childbirth is a risk-free, enjoyable experience. Advertisements with pictures of
healthy babies and smiling mothers may be accurate for most deliveries but not for
all. For those who are not so lucky, those advertisements fuel the resentment and
bitterness that lead to medical malpractice lawsuits. Obstetricians should be
especially careful about associating with physician referral services that are coupled
with public advertisements. These referral services often make explicit and implicit
promises about the physician services, promises that can complicate the physician–
patient relationship.
Both physicians and hospitals should be careful that their advertisements do not
constitute a guarantee that patients will be delivered in whatever way they wish. The
special facilities may not be available if there is a clustering of births on one day. In
some cases, birthing chairs or natural childbirth may not be appropriate for a given
patient. An obstetrician should know what the hospital offers and what his or her
patients want. If the hospital has special programs that the physician does not
participate in, every patient should be told of the nonparticipation. These matters
must be addressed in the first prenatal visit. Seven months into the pregnancy is too
late to find out that the patient has reserved the birthing room and the physician will
not use it. This will anger the patient and could raise the issue of consumer fraud if
the hospital’s advertisements promise services that are not available.
4. The Birth-Injured Infant
The first priority with a potential birth injury is to manage the infant’s medical
condition. Under no circumstances should concerns about possible litigation be
allowed to interfere with the infant’s medical care. The second priority is to make a
definitive diagnosis. Determining what caused the problem may guide the treatment
of the child and may help avoid similar problems in future children. It is also critical
to the defense of any subsequent litigation.
The careless use of diagnoses such as cerebral palsy or anoxic birth injury has
exacerbated the problem of obstetric malpractice litigation. [ACOG Technical
Bulletin 163. Fetal and Neonatal Neurologic Injury. January 1992.] The pediatrician
and the obstetrician should work together to obtain a good etiologic diagnosis for the
child. There is a general assumption among laypersons and plaintiffs’ attorneys that
all nonspecific central nervous system damage is due to birth hypoxia and is
therefore the physician’s fault. Obstetricians have fostered this belief by failing to
investigate the underlying causes of seeming birth injuries.
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