Your BIRTH Partners

Birth Professionals & Liability #021

October 26, 2020 Season 2 Episode 7
Your BIRTH Partners
Birth Professionals & Liability #021
Show Notes Transcript

There may be nothing that creates a stronger divide between birth professionals and the people they serve than the fear of liability.
Particularly in the hospital setting, the fear of liability looms large and impacts the way we provide care: from the policies we create, to the technology we use, and the way we speak to patients.
Special guest Irnise Williams, JD, RN joins Dr Abby Dennis, MD & Maggie Runyon, RNC-OB to dig into this multi-layered issue:
How do we move past that fear?
What best practices help us to document our care clearly for all involved?
What special considerations are at play when caring for underserved populations?

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Maggie, RNC-OB  0:05  
Welcome to Your BIRTH Partners. We are here to break down barriers and cultivate community as we discuss issues that impact pregnancy, birth and postpartum. We welcome you, no matter what your background is, and are so excited to learn together. So today we are digging into a really heavy and complicated topic, we are talking about the role that liability and malpractice play into the decisions that birth professionals and birth providers make when they are taking care of people. You'll learn more about some best practice strategies that you put into place to help there be clarity around difficult situations, difficult outcomes, we're going to talk through some of the tools that providers need to work on in terms of communication and follow up with those in their care. And to help you gain a greater understanding of this topic, we have a special guest on today, Irnise Williams is both a nurse and an attorney and a mother. And she'll be sharing some insight into the way she has seen these play out. And we'll also be joined by our own Dr. Abby Dennis!  Onto the show.

All right, so I am really excited about this conversation. I feel like the issue of liability and how that impacts the way we relate to people in our care is honestly at times really overwhelming. And it's really hard for us to get a sense of how to balance out our concerns for, you know, the patient's well being and what's happening. And then also thinking about, you know, ourselves and our livelihood, and how all of these things kind of mesh together in the very just litigious society that we live in right now. And so I am really excited with the two people I have on today to talk about this. So if you all just want to introduce yourself briefly to our podcast audience, and then we'll get into some good questions.

Irnise, JD, RN  1:56  
So my name is Irnise Williams, I am a nurse, I've been a nurse for about 12 years, I've been an attorney for six years, I practice health law, business law, and I help healthcare providers protect their license and reduce liability.

Maggie, RNC-OB  2:12  
That's amazing.

Abby, MD  2:15  
I'm Abby Dennis. I am an OB GYN practicing in Baltimore City, which is one of the areas where malpractice really drives practice very heavily. And so this is something that's an issue pretty close to my heart. I've been on the podcast before, what else do you want to hear about?  I'm a doctor and a mama. And I'm excited to be here. I've had a little break and being on these.

Maggie, RNC-OB  2:40  
Hey, I'm really glad to have you back. So yeah, so I think one of the things we want to talk about first is kind of where do we feel like the how do we feel like the fear of liability, especially for birth professionals, when we're dealing with, you know, to at least two lives, you know, are under our care, kind of that fear of liability play into our practice? And how do you see it playing in you know, for you Irnise in different, you know, outside of the birth professional thing? Does it feel like an extra layer, it often feels like an extra layer for us, you know, even more kind of weight on it?

Irnise, JD, RN  3:15  
Yeah, I guess Dr. Dennis, did you want to start?

Abby, MD  3:18  
I think the fear of liability unfortunately, drives a lot of practice. And you're talking about ob gyn. It's something that I wish I didn't think about at all. But I think all of us think about a lot in ob gyn, there's, you know, we are in a position where we really need to have perfect outcomes all the time in terms of moms and babies. That's partly because I think we're dealing with a young and healthy population. I mean, most of the time when somebody is pregnant, they have a baby, and everything turns out, right? when things start going wrong, that can happen very quickly. And often, decisions need to be made in the heat of the moment. And those decisions need to take into play, you know, medical outcomes, and also somebodies personal sort of outcomes and expectations for their birth. And that can be it can be a lot.

Irnise, JD, RN  4:14  
Yeah, so I think for me, I've never been an OB nurse, but I've had two babies and they're two very different scenarios. first child was born at Howard Hospital in DC. I was a student, I was a law student then but still a student. And, you know, I think my experience there was more of a family oriented, very loving, nurturing environment. I did feel like I had a lot of say in what was going on because when I was ready to have a C section because I've been birthing for too long, I just didn't feel like we were progressing and I was in pain. It was just a lot going on. The doctor really did come and listen and will leave was like okay, well, this is what you want. These are your options and kind of explained everything to me. My second birth was a Planned C section, but it was at Hopkins. And although you know, it's a very amazing place. That was where I started my career, I felt like it was very sterile. I didn't feel like people were very warm, were very trained and didn't explain things to me. So even when, like I knew because I was a nurse, I've worked in the OR that something was going on, because everyone's so quiet. Like, no. Like, I was like, This isn't normal. And I think I didn't get the reassurance that I got when I had my first C-section, where everything's okay, this is where we are with things, this is what I'm doing. And I think that plays a lot into how people react to their birthing experiences. I know Maryland is just an extremely litigious state, that's where I'm barred. And a lot of the cases that come out out there are just extreme in they get so much media attention. And you don't really get the full story, like you get the sensational part of whatever the attorney puts out, or whatever is kind of being litigated, but you never really get the other side, you never really get what happens, you don't really get to see the details of how preventative care could have played a role in it. And what I tried to explain to both patients and to providers is that a lot of people sue because they're angry, and not usually because of just something happened. Like I think people we all know that life isn't perfect that we're human, that even our bodies don't necessarily react perfectly in certain scenarios. And there are some things that are extremely avoidable. But I think how people are treated in that situation really plays a role in how the like the person's outcome. So I, you know, had clients come to me, and they're like, this is what's my outcome, I felt that this wasn't a good outcome. And if it's a serious case, I do kind of explain, like, even if we do pursue at the point, when I was doing some med-mal work with some other attorneys, you know, nobody's perfect. And things happen, like, let's review the chart and see what decisions were made. Because people there could have been conversations that were happening that maybe the patient wasn't privy to. And sometimes patients are in a situation where they feel like people are making decisions for them. Because they just don't have that relationship, right. Like maybe the provider who they built a relationship isn't on that weekend. And so someone else's there in that relationship where you know, that doctor would have told them, this is where we at this is where things are going. And maybe they, you know, the patient would have made a different decision just didn't happen because they didn't have that relationship. And so I think Maryland is a very unique place. And the way they allowed things to kind of go and they've they like, I think it's just gotten to a point where it's gotten so out of control that everything feels wrong, right, the patient feels like they've been wronged and the providers feel like they're in a very position where they can never be wrong. And so there is some, like, congressional work that needs to be done to really even out the playing field, and to really educate and to support both the patient but also the provider because we don't want to lose our OB-GYNs, right? There are a lot of places that don't have OB-GYN because of those reasons. So I think that's a layered conversation and so much work to do on both sides. 

Abby, MD  8:11  
I've had so many thoughts as you're talking because there are many layers. I mean, I think your point about communication is absolutely on key. I mean, that's, that's the heart of this. And when something happens quickly, and there's not time to explain, sitting down with a patient after the fact and really making sure they walk away from their birth, knowing why you did what you did. Is is so important. And I think that piece is lost a lot. And I think the trust piece also could be it just needs to be done in a different and a better way. Again, Maryland is a unique environment, it's very plaintiff friendly, there have been a couple very large obstetric cases that have really changed the climate of practice here. They've sent some precedents that are pretty scary for those of us who do this on the OB side, and I think have shaped OB-GYNs out to sort of be the bad guys in a lot of people's eyes. I think the reality is all of us who go into this field are doing this because we want to take care of women and we love what we do. I think women's health in this country has been sort of under represented & under reimbursed. I mean, there are some major issues there that trickle down and then affect the way that we we practice. And I think that there are a lot of little pieces that need to be fixed if you want to if you want to fully address this.

Maggie, RNC-OB  9:38  
And that's really hard. I feel like obviously that communication piece. In some ways, it seems easy, right? Like if we just right, we respect the people who are in our care, and we have these conversations, if that could be enough to kind of get through difficult situations and difficult outcomes that are not wanted by obviously anyone and I wonder where where does it we think we fall off on that, like, is it that providers aren't comfortable or trained about how to have those conversations? Is it that they're already kind of worried and they're their guard is up? Or is it is it like the just the paternalistic nature of health care that a lot of times people are just kind of making a decision that they think "I would make that for myself" or "I would make that for my daughter." So I'm gonna make it for you.  Where do you think that piece of it falls off?

Abby, MD  10:25  
I think it's a lot of those things. I know, you've heard me say, you know, it's I don't want to be paternalistic, or materialistic or whatever, you know, I have been doing this long enough, though, that, you know, at the end of this healthy baby is in a healthy mom are of the utmost importance. So it's, it's hard as a provider, when you see something happening that you know, is not, the patient's not on board as a plan that's going to lead to that, things become really challenging. But I think all the trust and all the communication and all the decisions that you make in the moment, are one piece of this. And I think the other piece of this is that as we walk away from from birth, particularly birth, where you have a child who's had some injury, families walk away from that and process it in different ways. And you know, is, even if I've explained why something happened to a family, they may have a very different take on that five years in, particularly if they're five years in, and they have a disabled child with, you know, health care costs and physical therapy appointments, occupational therapy appointments and home care needs, that becomes challenging. And I think sometimes stories change. And in that sort of setting, because I'm sure families become, you know, stressed and angry, and all sorts of emotions come out after the fact.

Irnise, JD, RN  11:54  
Yeah, I mean, I think that no health care provider is trained to have difficult conversations, that wasn't a part of my nursing training in school, I think the only thing that even kind of opened my eyes to what happens outside of the health care world where it gets into the legal world as when I first started nursing, they had the, one of the attorneys work for the hospital come and do a training, and basically scream at us and say, "Do not write this in the chart that you called the doctor five times and he didn't respond." Like, it just stuck in my head. And I was like, he's crazy. But like it stuck in my head. So like, even if I was having a very emotional day, and I didn't like the doctor I was working with, I still reminded myself like, it doesn't go on the chart, just send an email to your supervisor, right. And I think sometimes nurses or other health care providers, write things or put things on the chart, because they're trying to protect themselves without understanding, you have to protect the entire team. It's not necessarily just about you, as an individual, your license, it's about ensuring that what's happening is very clear. And everybody, everyone may not be privy to what's happening in the background. So if a doctor is not responding, and doesn't mean that they're not, you know, listening or hearing what you're saying, they may be stuck in another emergency, they may be having a meeting or meeting with a different provider to make a decision. And that may not go into the chart, but that's something that goes into, you know, their decision making process. And so I think that that part of that education of what goes into the chart, how to document and even training on how to have difficult conversations, because we don't know what goes on outside, I think, for me, because I have that attorney, and he would come to the OR every year like, like to have these comments with us. And because that's where it was really big for us, our OR there. I mean, people would sue. I mean, even though the doctor explained all of the risk, and the anesthesiologist explained, I'm like, it doesn't matter, right? Like if someone didn't survive their surgery, they want to see their their chart, they want to, you know, take it to an attorney. And so he would just be so just clear about what should go on the chart, and what should it and that has kind of followed me through my entire career, and is a lot of the education I provide to other health care providers, especially nurses, because nursing can even though I think very few nurses are sued, and very few nurses lose their license, in their minds, they feel that the world is against them, that the doctors are against them, that the patient that the Board of Nursing is going to come after them if they don't do everything right, even though you see very few nurses in in, you know, in litigation cases. And so I think what I try to explain to the nurses that I work with in our training that I have discussions with and I have opportunities to reach out to is like we are a team and we have to all be on this together. And so I've seen cases where and not just OB cases but a case where like someone have fall which is a "never" event, that should never happen. But when you look at the chart, they did everything right like The note was "patient had a fall." period. Right? Like it was like it was very clear. The doctor was paged, the doctor showed up, the doctor wrote a note, like it was like, boom, boom ends, but that daughter who was there when that fall happened, like, that's not what happened. And I'm like, I can only go off of the chart, and I can't sue a hospital because of your mother slipped and kind of fell when someone was helping her up when there were two people there helping her, right. And so if we follow the protocols that we have in place, which sometimes people don't, which leads to issues, and if we communicate effectively with each other and work together as a team, the health care system in itself can kind of protect itself from some of the things that happen, never everything. You know, there's some times where people make mistakes. And that's just it, and you have to pay for those mistakes. But there are times where it's just confusion in the chart. And if there's confusion in the chart, it opens up the door for attorneys to basically make their own case, right?  They can't make their own case, unless there's basically just not enough information in the chart, or there's conflicting information in the chart. And so I think more healthcare providers, one needs to learn how to have difficult conversations about the process. What could potentially happen, like I think nobody ever told me about, like, potentially having a C section. Nobody ever prepared me mentally for that. It was like, I was young, I was 25, I was healthy. I was going to have a baby. That was it. Like nobody really discussed the options, what that would look like what that would feel like the feeling of not being able to birth a baby. For some people, it's not a big deal. But for me what it was a big deal, and I felt very lost. And that was no one's fault. That was you know, but I, as a nurse, I still never have that expected outcome.  And that wasn't necessarily a negative outcome. I had a health I want a healthy baby. But even that moment, that gap made me for a long time feel like, this isn't what I wanted, right? And so I think in healthcare in general, if we start guess, from the greatest thing that could happen to the potential risks that could happen and how we work together to prevent those things, I think maybe it would soften the landing when things don't come out as people expect. And we'll never stop every case from being pursued. But I think some of the smaller cases that come about that people end up just the hospitals end up paying out because they don't want the fire could lessen if we were just, you know, starting from the beginning and have those conversations and then just working together as a team. 

Maggie, RNC-OB  17:29  
Mmmm. It's interesting like, as a nurse, I can resonate with what I think some of us have been through, like you said, that was like the training courses where someone comes and like pretty much tells you like, you're gonna lose your license, it's inevitable, it's happening if you don't do XYZ, and they tend to be like, very, very intimidating, and I've seen it a couple different places. You know, when we're charting, I think, especially in high emotion situations, when there is a bad outcome when something is not going to plan. People have a hard time separating that piece, you know, the facts from the emotion and a lot of us feel a lot of responsibility, right for what's going on, which is good.  But I do think it can make it challenging to have transparency and what is going on because obviously we're not trying to like, you know, try to omit something, you know? I think that's one of the things that when I've talked to people who work, you know, who are outside [the system] when I talk to clients, and you know, doulas, people who aren't involved in charting and the whole medical management of care, I think they're often surprised, unaware of that whole dynamic, and I think they perhaps desire more transparency like that, if there's just if there was just like a video running the entire time that you got to see what was going on that like, that would be the answer, right? Like if it was real play, you know, what's going on that that would help to process it. And so I feel like sometimes it feels like you're caught in the middle, right, between kind of what what we know and are taught is like, "best practice," from an organization standpoint, you know, for us for our license, which does matter, you know, it is people's livelihood. And at times, it feels like it it creates this "us versus them" piece where it feels like if we do that if we're charting in just this way and we're doing all that like that we are protecting only us as an organization as a health care system and that we're not working with you know, the client and I...

Abby, MD  19:40  
That's the goal, right? 

Maggie, RNC-OB  19:41  
Right.

Abby, MD  19:41  
...Is for the entire unit including the patient to be satisfied with the care provided, to have good care. I was just talking to one of my partners the other day about the idea of a head cam like how much I would love to just wear a head cam around when I'm on call. So it recorded everything, recorded all the conversations, all the care. So all those nuances of care would be completely transparent should there be an outcome that at the end of the day is seen very differently by myself and by a patient. And I sometimes wonder if that would make me see things differently? I'm sure it would. And I think it would also just sort of help in situations where outcomes aren't as expected. That's never gonna happen, I know.

Irnise, JD, RN  20:26  
Yeah. I think we all want that perfect scenario of, you know, either someone completely wants a complete video, or even even having the ability to have the conversation how you say, sometimes the story changes, I'm like, I could see that like, where people say they understand you explain, they understand, they say they understand. And then they say, no one ever told me that right. Like, I think there is no perfect situation to kind of avoid all liability. But I do think that the validity of some people's voices not being heard is what drives to me a lot of what happens in the Baltimore area.  What I've seen in Baltimore, is that people feel like they are not heard and some of the underserved communities feel as if they've been taken advantage of, then no one cared about them. And it may not necessarily be that direct interaction with the provider that took care of them that day. I think it's just systemic, right. So much of what drives people in underserved communities is the systemic oppression and the heaviness that they carry, to then deal with another blow of their child or having to do the odd who's injured until that anger then kind of just gets funneled towards something where they can actually have a, where they think as a positive outcome is at least being able to recuperate some type of money. And that's a to me a very Baltimore thing, like, there's no place that I've ever lived, where I've heard people talk about suing anybody, like just not even healthcare, but just anyone, like, it's a running joke amongst me and my friends. And a few of my friends are like, from Baltimore, they're like, Oh, that's how people live, like, just get a case, like that's how it is. And it's and so I think, as a health care system, in order to prevent those things, you have to even go above and beyond, right, like, because you're in that unique place, I think all providers have the responsibility to have those conversations. But in a place like Baltimore with that, in the back of people's heads, like if this doesn't come out, right, like they already have a plan, they already know who they're going to call, they have a name and a number. And when you lead with that, it to me, sometimes it opens the door for negative outcomes, right? Because that's your expectation is an underserved, "I'm from this underserved community, they don't care about me anyways. And so if this happens, or if it doesn't come up the way I expected, then I already have a plan in place." And that's something that's way bigger than health care, or that's something that's so much bigger than we can control. And if we focus on trying to either we can focus on trying to fix that, which is impossible, or we can say there's no way I'm fixing that, and then just kind of leave people to figure it out. But I think there's a middle ground where there are layers of support and education, where we noticed people who aren't just understanding what's happening. So I've seen some patients who just can't grasp what you're saying. And the doctor can only spend so much time with the patient. But someone has to follow back up with the patient, if it's a nurse, if it's a community, educator, someone has to be that layer to ensure that what is happening in that education is being provided. And I feel like in Baltimore, they've lost so much resource, so many resources, so much support, that they just lacked that, you know, they don't have the ability to have that extra layer, there's no one in the community educating.  My friend used to be community educator, a small organization, and they closed and that was it, like she did not care about the money, she did not care about the the location. She loved what she did, and she provided so much education to new moms, expecting moms gave that support, you know, and it closed. And so it's like when you lose something in a community that's already underserved. And then you send them into a huge hospital system, which can be extremely overwhelming. No matter what the doctor says, no matter how much time the provider spends with them, they're not getting it. And I think that's the bigger issue is like how you're saying it's under, you know, women's health is just under how what when we are literally the beginning of life and the continuance of life, why would we not support that industry and ensure that they have all the resources that they need for every level? And I think that's to me is what happens in Baltimore where I see there's a huge disconnect from the end result of getting to the hospital and kind of the beginning of where they're seeking care.

Abby, MD  24:53  
Between, you know, reimbursement, which is interesting when you look across the board of medicine, I mean, the global sort of reimbursement for 46 weeks of maternity care. Last time I looked, we get less for that, as physicians, than anesthesiologists do for placing somebody's epidural in labor. OB has been deemed a primary care specialty. And in general, when you look at surgeries performed specifically on women and you look at reimbursement, maybe compared to like the same procedure in a urology setting performed normally on men. Or if you look at other surgical subspecialties were predominantly men are the providers, reimbursement is extremely different. OB-GYN is probably the most, it's one of the most, litigious branches of medicine. And one of the least compensated, that combination is really hard. Particularly when you take this to underserved community, communities in the inner city, the reimbursement for a Medicaid patient is a fraction of what private paying patients get reimbursed for that 46 week period of care that we provide. And what that means is OB-GYNs are seeing far too many patients, too many patients to build appropriate relationships, right. And then we're in the situation where we don't have those appropriate relationships, we haven't built trust, and we have to make life or death decisions, not knowing how a patient sees us or, or sort of what their perception of the whole situation is. And it's a tricky situation to be in.  A lot of OB-GYNs just stop providing the obstetric part of care at some point in their career. And a lot of people just leave practice environments like Baltimore City where, unless you're in academics, it's just really tricky to survive. And those malpractice cases takes such a toll on doctors, like I don't think people understand like, I deliver babies because I love that I love that more than anything else in the entire world. So for somebody to then accuse me of trying to hurt them or hurt their baby. I mean, that's from the doctor standpoint what these malpractice cases become and they take so much away from you. And then I think about the patient side of things that you're explaining Irnisee. And it's a tricky, it's a tricky situation. I feel like we need to do more things to help maternity care providers and patients be on on the same page and and understand that we're all going into this together as a team. 

Irnise, JD, RN  27:34  
Yeah, I think that's that's definitely key. And it's sad to hear, you know, I think nobody ever talks about the toll that it has on everyone involved. Like, you know, I saw one time a nurse, she'd been a nurse like 50 years been in so long, and she got like a phone call about a deposition from like, 10 years prior. And she was like, why, like, it gave her so much anxiety. And so I can, nobody ever really discusses that part of it and the stress that goes into having a deposition and for the you know, from the legal perspective, I understand in order to effectively win a case in any environment, you have to go what I say like go hard, like you have to hit at every point, or the court is going to find that in your favor and not in your clients favor. And so you know, yes, I think people look at attorneys and they're disgusting, they're terrible people. But in some instances, like that's the way it's been. That's the way the situation is treated. Like that's the way the justice system has been created. Like there is no in between. I mean, if I think in Maryland, you go to arbitration. So it's not as bad you don't essentially have to go to court. And if you are with a good arbitrator who is balanced and fair, it doesn't get nasty, it's does stick to facts and what really happened and and people are able to express themselves appropriately. But I think that's where like I have seen amazing arbitrators who they don't allow it to get personal, they didn't allow it to they really just sticks to what happened in the facts in the chart and, and then kind of at the end, they allow people to kind of express their feelings. And I think that's effective, right? I think people's feelings and emotions are valid. But that's the place for it isn't necessarily in the litigation, right? Like the facts really should be the only thing that's coming up in litigation, and discussing the standard of care if it was met or if it was not met, because that's just what it is. But I think emotions and media and all of that kind of drives those conversations within pushes the two parties further apart. And they really aren't able to have the appropriate conversation or reconciliation. And even that when it's all said and done, that trauma is still laying there for the patient and the mother or the mother or the family. And then the provider is left to figure it out on their own. Like that's it right like however it is in their favor or not. There's no care for the provider on the other side of that so I think they I don't either I don't know what Maryland to do, I think there are a lot of conversations and a lot of requests of things that they should do. But I think as providers, being able to request from whomever you guys are working with, for more support, like there has to be more, there has to be someone in the office to answer the questions, to answer the phone calls to be able to, you know, get the people to the end, without it overwhelming the provider who's trying to close their notes, and see as many patients as required, and then also on call, so they're ripping and running from the office to the hospital, and also have a family and a life. Like, we're asking this one person to be so many things. And I think that that becomes unfair to to everyone involved. But, you know, there's only but so much we can change, I think shining light on these kind of kind of conversations, really helps open up ideas of how we can get better. I think tech is improving a lot of things and a lot of areas, but I don't really see them focusing on OB-GYN care, like as much, you know, I think it's like primary care, they're receiving a lot of support, that like specialties like diabetes, and IBS, and all these other specialties are receiving a lot of tech, you know, innovation, but I don't really see people having that same conversation about here, you know, bringing that to the tech world and saying, this is the problem that we have, who's willing to solve it and let people figure it out. Like that's, you know, not our job is to necessarily figure it out. But there's a whole world out there are people who are figuring out problems and creating solutions. And I think letting people know, the problems that we're having in this industry will kind of help foster some ideas that maybe some innovative ways that we can kind of help patients get to better outcomes.

Maggie, RNC-OB  31:45  
Yeah. And I do think that's what's so hard. It's like, because, again, because of that whole "us vs them" thing, I think so often, it seems like that the providers, the birth pros, like don't necessarily care about the outcomes. That either way, you're just kind of getting through and like, sure you want good things, but it doesn't I don't think it's apparent how like crushing that piece of it is. So Abby, I really appreciate you, just speaking to that piece of it so vulnerably and sharing with us and Irnise, thank you for just unloading all this wisdom that you have as a nurse and as an attorney, and helping us to see just some of the other dimensions to this issue. Thank you both so much for sharing all this with us. 

Thanks for tuning in. We love to talk birth and would love to talk about with you. Please join the conversation by finding us on Facebook, Instagram or Twitter, where your birth partners on all platforms.  We're going to put more information on our show notes about some resources you can look into if you're interested in learning a little bit more about malpractice climate and how it relates to obstetrics and how birth professionals are helping to navigate issues of liability while still providing truly patient centered care. We look forward to hearing from you and your experience and how you are navigating this complex issue as professional.  Till next time!